Possession of Controlled Substances in Kentucky: Penalties, Enhancements and Proof

The mere possession of some things is a crime. You can’t have a nuclear weapon(1), you can’t have Kinder Surprise Chocolate Eggs(2), and, in Kentucky, you can’t have marijuana, methamphetamines, heroin, or cocaine, and/or many other substances unless you’ve a valid prescription. The penalty for illegally possessing controlled substances, aka “drugs”, depends on how dangerous Kentucky thinks they are based on their potential for abuse and whether it has any accepted medical use.

Penalties

Possession of “schedule I or II” drugs, such as Methamphetamine, Heroin, and Fentanyl, is a felony, punishable by 1-3 years in state prison (or county jail). The enormous addictive properties of these substances combined with the risk they pose to human health, and indeed their involvement in all too many overdose deaths, makes these the worst of the worst in Kentucky’s eyes.

Possession of Schedule III drugs (without prescription), such as Xanax, Anabolic steroids, Buprenorphine or LSD, is a Class A misdemeanor, punishable by up to a year in a county jail. Possession of a Schedule IV or V drug, such as Tramadol, Diazepam, or Gabapentin, is a Class B Misdemeanor, punishable by up to 90 days in county jail. The highly charged politics of Marijuana has left it subject to its own unique set of laws distinct from all others. Possession of Marijuana is labeled as a Class B Misdemeanor, but, rather than a 90-day sentence cap as with other Class B Misdemeanors, Marijuana Possession sentences are capped at 45 days.

Penalty Enhancement

Penalties for possession can be enhanced if a firearm is at play. If the state can prove that a person charged with illegal drug possession was also in possession of a firearm then misdemeanors (up to 1 year) can be punished as class D felonies (1-5 years), and Class D felonies will be punished as Class C felonies (5-10 years). If a gun is present in the course of drug possession, then the law assumes the firearm furthers that crime. However, if possession of the firearm is more tenuous, i.e. it is not in your direct possession, then a good lawyer can force the Commonwealth to prove that a nexus between the firearm and drug possession actually existed before the enhancement can be applied.

Proof: Direct and Circumstantial

Where the crime(s) of possession can get complicated is in proving ‘possession’. Not every drug or gun possessor is caught red handed(3). When police haven’t direct evidence that a defendant possesses drugs, such as someone admitting they possessed drugs or finding drugs in their hand, then the proof becomes circumstantial instead. Circumstantial proof is evidence that jurors can draw inferences from. For example, if you walk outside and the sidewalk is wet you might then conclude that it is raining. Likewise, if illegal drugs are found in your car, then jurors might conclude that the drugs were in your possession. However, that sidewalk might have been near a sprinkler, and, likewise, those drugs in your car might have been left by a passenger. Ultimately, it is a jury that determines what conclusions to draw from any evidence, direct or circumstantial, and you can be convicted purely on circumstantial evidence. In order not to be, you need a good lawyer to point out the sprinkler to the jury.

Whatever your criminal conundrum, don’t talk to police, and get a good lawyer.

Sources: 1. U.N. Treaty on the Prohibition of Nuclear Weapons (effective January 2021); but you actually can have a working tank if you get the right permits (atf.gov/file/61596/download) 2. U.S. Customs and Border Protection & U.S. Consumer Product Safety Commission Recall Release #97-172 Com. v. Montaque (Ky. 2000) 23 S.W.3d 629 3. A saying which likely originates from Scotland regarding hunters or murders caught in the act of killing.