Simple possession of controlled substances without a valid doctor’s prescription is always a federal crime as well as a state crime in Nevada.1 But the feds largely limit their prosecutions to possession occurring on federal land, such as Lake Mead, Nellis Air Force Base, or the Lloyd D. George Federal Court.
The feds also target people who purchase suspiciously large quantities of ephedrine, which could be used to make methamphetamine. Otherwise, the vast majority of Las Vegas drug possession cases are prosecuted in Nevada state or local municipal courts.
What is the federal drug possession law?
The federal drug possession law (21 U.S. Code § 844) makes it illegal for any person knowingly or intentionally to possess a controlled substance. Possession means to own or exert physical control.
Possession can be actual, such as physically carrying narcotics. Or possession can be constructive, such as storing the narcotics in one’s home or storage unit. When two or more people have control over narcotics, it is called joint possession.
21 U.S. Code § 844 also makes it unlawful for any person to knowingly or intentionally either:
- Purchase at retail during a 30 day period more than 9 grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base in a scheduled listed chemical product (which are legal, over-the-counter substances that can be used to make methamphetamine); or
- Possess any list I chemical wrongfully obtained from having an expired, cancelled, revoked, or suspended registration (such as a former pharmaceuticals manufacturer). List I chemicals include:
- (A) Anthranilic acid, its esters, and its salts.
- (B) Benzyl cyanide.
- (C) Ephedrine, its salts, optical isomers, and salts of optical isomers.
- (D) Ergonovine and its salts.
- (E) Ergotamine and its salts.
- (F) N-Acetylanthranilic acid, its esters, and its salts.
- (G) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers.
- (H) Phenylacetic acid, its esters, and its salts.
- (I) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers.
- (J) Piperidine and its salts.
- (K) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers.
- (L) 3,4-Methylenedioxyphenyl-2-propanone.
- (M) Methylamine.
- (N) Ethylamine.
- (O) Propionic anhydride.
- (P) Isosafrole.
- (Q) Safrole.
- (R) Piperonal.
- (S) N-Methylephedrine.
- (T) N-methylpseudoephedrine.
- (U) Hydriodic acid.
- (V) Benzaldehyde.
- (W) Nitroethane.
- (X) Gamma butyrolactone.
- (Y) Any salt, optical isomer, or salt of an optical isomer of the chemicals listed in subparagraphs (M) through (U) of this paragraph.2
See our related article on federal drug trafficking (21 USC 841), which is making or distributing drugs. Trafficking is far more serious than possession for recreational use, making it more likely that the feds may prosecute the cases.
A first offense of drug possession carries up to a 1 year prison term and/or up to $1,000 in fines.
What are the penalties for federal drug possession?
The punishment increases with each subsequent offense:
|
Drug possession |
Sentence under federal law |
| First-time conviction |
|
| Second-time conviction* |
|
| Successive conviction* |
|
| *The prior convictions can be any drug crime in state or federal law.
^The maximum prison sentence is three years if the drug is flunitrazepam (Rohypnol), even for a first or second offense. |
|
The judge may not suspend or defer the minimum sentence. Defendants also face fines for the costs of the investigation and prosecution of the case.3
How do you fight federal drug possession charges?
Five common defenses to a drug possession charge for personal use include:
- The defendant had no joint possession, actual possession, or constructive possession of the drugs.
- Someone planted the drugs on the defendant or at his/her home or car without his/her knowledge.
- The defendant was entrapped by law enforcement.
- The defendant had a current and valid doctor’s prescription to possess the drugs.
- The defendant was falsely accused of the drug offense.
How is Nevada’s drug possession law different from federal law?
The federal and Nevada definitions of drug possession are essentially the same: They both forbid knowingly or intentionally possessing controlled substances without a doctor’s prescription. But federal penalties are different than those for Nevada drug possession (NRS 453.336).4
It is usually preferable to face drug charges in Nevada state court rather than federal court. State court offers Nevada drug court, where defendants can do rehab instead of prison. And Nevada state law permits defendants to seal criminal records for drug law violations, whereas federal records are nearly always unsealable.5
Can someone face both federal and state charges for drug possession?
Yes. Nevada and the federal government have concurrent jurisdiction over cases involving possession of a controlled substance.6 However, it is rare for defendants to face charges from both courts for the same incident.
Call our Nevada law firm for legal advice. Our criminal defense attorneys offer free consultations.
Accused of possession of drugs? Our criminal defense lawyers will fight to get your drug charges reduced or dismissed. We represent clients throughout Clark County, including Las Vegas and Henderson, as well as throughout the state of Nevada.
See our related articles on schedule I drugs (such as LSD and GHB), schedule II drugs (such as Oxycontin), schedule III drugs, schedule IV drugs, and schedule V drugs (such as Codeine).
Legal References
- See 21 USC § 801; see United States v. Atkinson, (4th Cir. 1975) 513 F.2d 38 (even intrastate drug possession affects interstate commerce); see United States v. Lopez, (5th Cir. 1972) 459 F.2d 949.
- 21 U.S. Code § 844.
- Same.
- Same; NRS 453.336.
- NRS 179.245.
- See note 1.
