Controlled substances are incredibly common in our area, particularly at nightclubs and casinos. As a result, many out-of-town visitors (as well as locals) find themselves facing one or more of a variety of related charges. Drug crimes involving controlled substances are very serious, and individuals charged will need to contact a team of experienced criminal defense attorneys.
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Possession of Controlled Substance, or Drug Possession, is perhaps the most common illegal drug felony charged in Las Vegas. Surprisingly, the State of Nevada has enacted some of the toughest state illegal drug laws in the nation. The charge of Possession of Controlled Substance, demonstrates the toughness of Nevada drug laws. In many other states, small amounts of heroin, cocaine, methamphetamine, ecstasy/MDMA, and marijuana, are treated as misdemeanors or is the basis for a mandatory drug diversion program. This is not the case in Nevada. Even possession of small amounts of these illegal drugs provides the legal basis for a charge of Possession of Controlled Substance in Nevada. Many visitors are surprised by this fact.
Possession of Controlled Substance (NRS 453.336) involves a person knowingly and intentionally having an illegal drug in his possession while knowing the drug was illegal. This crime applies to all types of illegal drugs. Drug Possession Las Vegas is a serious crime.
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In Las Vegas, recurring Possession of Controlled Substance scenarios includes charges which arise from pool party, nightclub, strip club, Electric Daisy Carnival (EDC), and casino, related incidents. In all of these locations, arrests for Possession of Controlled Substance are common. Given the tourist-oriented economy of Las Vegas, people from all over the world travel to Las Vegas and find themselves behaving in ways which are inconsistent with their usual standard of behavior. This frequently includes indulging in illegal drugs. This factor and the prevalence and availability of illegal drugs in Las Vegas, ensure that people are constantly being charged with Possession of Controlled Substance in Las Vegas courts.
In every Las Vegas Possession of Controlled Substance prosecution, the prosecutors must prove that the defendant knew of the narcotic character of the narcotic possessed. This is an essential element of the crime of Possession of Controlled Substance. The law in Nevada is that a person has “constructive possession” of a controlled substance only if the person maintains control, or the right to control the controlled substance. This issue frequently arises in situations where a search warrant is executed at a house with multiple residents, and controlled substances are recovered. Actual possession situations are much simpler. There the prosecution shows evidence that the defendant had the drugs under his immediate control (i.e., in his pockets for example) and knew that the substance was a narcotic.
A man is charged with drug possession, specifically, that he possessed marijuana. The police search his two bedroom apartment. They found 4.35 grams of marijuana in a paper bag on a bed in the guest bedroom. At the time of the raid, the defendant and four acquaintances are inside the apartment. At a jury trial, the man is convicted of possession of marijuana. On appeal, the Nevada Supreme Court states that for in order for the defendant’s conviction for drug possession to be valid, the prosecution is required to show that the defendant knowingly possessed the marijuana. Because the marijuana was found in a paper bag in the defendant’s guest bedroom, the prosecution proceeded on a theory that the defendant had constructive possession of the marijuana. Reiterating the rule in Nevada as to constructive possession, the Court stated: “The accused has constructive possession if he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control.”
In this case, the Court ruled that the prosecution’s construction theory of drug possession was inadequate to support defendant’s conviction. While defendant did own the apartment, his presence there was not enough in light of the facts that the marijuana was found in the guest bedroom, and four other persons were in the apartment, any of which could have been the owner of the marijuana. Finally, the Court noted that the theory of constructive possession failed because the prosecution could not show that defendant was in the guest bedroom at the time of the raid, nor did they show that the marijuana was so conspicuous that the jury could infer that the defendant “controlled and knew of the drug’s presence.”
This example of a theory of constructive drug possession underscores the rule that applies in drug possession cases throughout Nevada: Without more, “mere presence in the area where the narcotic is discovered or mere association with the person who does control the drug or the property where it is located is insufficient to support a finding of [drug] possession.”
Frequently in Las Vegas persons find themselves charged with both felony drug possession and more serious felony drug counts such as drug trafficking, possession of controlled substance with intent to sell, or sale of controlled substance. In these situations double jeopardy analysis is necessary. Consider this: a man is caught with close to 5 pounds of marijuana and is charged in Nevada District Court with possession of controlled substance with intent to sell and the lesser included offense of simple felony drug possession – two separate and distinct Nevada drug felonies. The question then becomes can the man legally be convicted on both drug offenses if the jury finds that the elements of both charges are proven beyond a reasonable doubt?
Deciding a case with a similar set of facts the Nevada Supreme Court recently answered this question in the negative. Essentially, the Court ruled that a conviction for both offenses violated the Double Jeopardy Clause. The Double Jeopardy Clauses of the United States and Nevada Constitutions both protect against multiple punishments for the same offense. In light of this long-standing tenet of constitutional law, the Nevada Supreme Court held that where an offense qualifies as a lesser-included offense of a greater offense (i.e., for example, in this case, if the man is guilty is of felony drug possession with intent to sell, he is necessarily guilty of felony drug possession), a defendant cannot be convicted of both offenses. Alternatively, consider the concept this way: no sale of narcotics is possible without possession. Additional analysis reveals that all of the legal elements of simple felony drug possession are subsumed within the elements of felony possession of controlled substance with intent to sell. Therefore, a person cannot be convicted of both criminal drug offenses under these facts.
In Las Vegas drug crimes cases, – particularly when the offense of felony simple drug possession is charged along with greater drug felony offenses – this issue often arises. It is essential that the criminal defense lawyer handling the case understands the case law which governs the relationship between lesser included offenses, greater offenses, and the Double Jeopardy Clauses of both the Nevada and the United States Constitutions.
If convicted of Possession of a Controlled Substance in Las Vegas, a person will face the following penalties:
First or Second Offenses:
This is a Category E felony. The penalties involve 1-4 years in prison and fines up to $5,000. For a First or Second Offense, the sentencing judge will suspend the sentence and grant probation and assign conditions to the probation. If the convicted person fails to complete terms of probation, the Court will impose the suspended prison sentence.
Third Offense (or more):
This is a Category D felony. The penalties include 1-4 years of mandatory prison time and fines up to $20,000.
In Las Vegas, when a defendant has prior convictions for Possession of Controlled Substance, and the prosecution seeks to charge him with an enhanced Possession of Controlled Substance charge, the prosecution must provide clear notice to the defendant in the charging document. The prosecution has the burden of producing the existence of the prior conviction by presenting a record of the prior conviction.
Due to the severity of the penalties associated with Possession of Controlled Substance, and unlike many other states Nevada does not have a mandatory diversion program for first-time drug offenders, many people with no prior criminal record find themselves facing significant consequences for possession of small amounts of illegal drugs. A felony conviction for Possession of Controlled Substance can, and frequently does, severely damage career opportunities for many years.
Nevada Revised Statute 453.3363 provides a mechanism for certain first-time Nevada drug possession defendants to have their drug possession case dismissed and ultimately avoid a criminal conviction. A person who has not been previously convicted of certain drug offenses may, if the parties and the sentencing court agree, allow a qualifying defendant to enter a plea to felony drug possession; suspend the proceedings; allow the defendant to be placed on probation (which generally includes a drug treatment component); and dismiss the drug possession charge against the defendant upon successful completion of the requirements.
Furthermore, the statute specifies that “discharge and dismissal under this statute is without adjudication of guilt and is not a conviction for purposes … of employment, civil rights or any statute or regulation or license or questionnaire or for any other public or private purpose.” The effect of this statute is to allow otherwise law-abiding and productive persons who are charged with drug possession a way to dispose of their case without their lives being impacted by a felony conviction. Many of our clients have been the beneficiaries of this law. Sometimes prosecutors will not agree to resolve a case pursuant to NRS 453.3363, but with the right set of facts, NRS 453.3363 treatment for a drug possession case is a significant possibility.
Our experienced Las Vegas criminal defense lawyers at Oronoz and Ericsson are not afraid to do what it takes to obtain favorable results for our clients. We’ve helped many clients avoid harsh sentences through tried and true pre-trial negotiation strategies, and we’ve helped many others avoid conviction entirely by successfully trying cases in front of juries. When you are charged with a crime involving a controlled substance, you need skilled legal counsel.
Controlled substances include, but are not limited to:
We have a proven track record of helping people just like you who have been accused of crimes in Las Vegas and southern Nevada. Each of our firm’s partners and associates has experience with controlled substance laws that can only be earned though years in criminal defense, in and out of the courtroom.