Criminal Law

Drug Crimes: An Overview

By Micah Schwartzbach, Attorney
Learn some basics about drug prosecutions, including common offenses and punishment factors.

Drugs are everywhere in criminal law. Sometimes they're at the root of an offense, as where chemical dependency drives someone to commit a robbery. But often they’re right at the surface, as the subject of the criminal charge.

State and federal laws create all sorts of drug crimes. These offenses relate to virtually any kind of behavior associated with controlled substances—manufacturing, transporting, buying, selling, and using, to name a few.

Federal and State Law

Drug crimes can be prosecuted in the state or the federal court system. Possession crimes, for one, are often prosecuted by the state in which they happen. Someone arrested for cocaine possession in, say, downtown San Francisco may well be charged in the California court system.

In many cases, both the state in which the alleged drug crime occurred and the federal government have jurisdiction to prosecute. That's because (1) the Commerce Clause gives the federal government the power to regulate commerce between states and (2) drugs are considered to be involved in interstate commerce. (United States v. Peck, 161 F.3d 1171 (8th Cir. 1998).)


There really are too many drug crimes for a single article. Below, though, are a few from the list.

Being Under the Influence

Being under the influence of drugs, on its own, can be a crime. To illustrate, in California it’s generally a misdemeanor to use or be under the influence of many controlled substances. (Cal. Health & Safety Code § 11550(a) (2017).) Being under the influence of drugs under some conditions or while doing some acts can be another, more serious crime. For example, one California crime is being “in the immediate personal possession of a loaded, operable firearm” while illegally under the influence of “cocaine, cocaine base, heroin, methamphetamine, or phencyclidine.” This latter crime can be either a misdemeanor or a felony. (Cal. Health & Safety Code § 11550(e)(1) (2017).)

Another example of illegal under-the-influence activity is, of course, driving.


Drug possession is one of the most common criminal offenses. Having in your possession any of a number of drugs—including marijuana in many states and under federal law—is a crime. Exceptions allowing for legal drug possession do exist, though (for instance, possession for medical purposes when specified criteria are met).

The elements of the crime of drug possession depend on the statute setting forth the offense, but a typical state's definition would be:

  • having possession of enough of the drug to be used
  • knowing that you have possession of the drug, and
  • knowing that what you have is an illegal substance.

It’s also generally illegal to possess drug paraphernalia—even if you don’t possess the actual drug. A typical “paraphernalia” definition covers materials that are intended to be used in conjunction with the illegal drugs. Examples include drug scales and some pipes.

Possession for Sale

Possession of drugs for sale is a crime closely related to—but much more serious than—simple drug possession. This offense often has the same elements as the crime of simple possession, with the additional, critical element of intending to sell, deliver, or distribute the substance.

The circumstances, rather than an admission of intent by the defendant, are typically what show that the possession wasn’t for mere personal use. Factors like possessing a lot of the drug, having a pay/owe ledger, or owning packaging materials tend to support the inference that the possession was for the purpose of selling the controlled substance.


Penalties for drug offenses vary wildly. Pleas to drug crimes can lead to several years in prison or no conviction at all. The punishment a defendant receives will depend on factors like:

  • The conduct charged. Simply being under the influence, for example, will normally lead to a much lighter sentence than trafficking. All kinds of factors involved in the crime can enhance punishment, among them possessing a weapon, involving a minor in the crime, and committing the offense near a school.
  • The harmfulness of the drug. Again, a substance like heroin comes with stiffer penalties than one like marijuana.
  • The quantity of the drug. In general, the more drugs, the more time.
  • The extent of the defendant’s participation in the crime. All things being equal, a defendant who handles the narcotics and provides counter surveillance in a drug conspiracy will probably fare worse than one who went along but didn’t do much.
  • The defendant’s criminal record. Then length of a defendant’s record and the seriousness of the offenses on it go a long way toward determining punishment.

Defendants convicted of drug crimes can face penalties like jail or prison time, fines, and mandatory treatment. They can even have to forfeit property, sometimes in separate “civil forfeiture” proceedings. In a Georgia case, for instance, the state supreme court upheld the finding that a defendant had the required degree of criminal responsibility to have to forfeit the truck he was in when he was arrested for driving under the influence. Police had reportedly found a crack pipe, about 50 rocks and particles of crack cocaine, and over $3,000 in the vehicle. The court held that forfeiture of the vehicle and cash was appropriate. (Walden v. State, 283 Ga. 148 (2008).)

Getting Help

To learn about the law that applies to you, consult an experienced criminal defense attorney. A knowledgeable lawyer will be able to advise you about your situation and options.

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