Possession of Controlled Substances in Las Vegas
On This Page You’ll Find:
Cocaine, Methamphetamine, Marijuana, Ecstasy/MDMA, or Heroin
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 is the Most Common Las Vegas Illegal Drug Charge
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
the toughness of Nevada drug laws. In many other states, small amounts of heroin, cocaine, methamphetamine,
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.
Common Las Vegas Drug Possession Arrest Locations
In Las Vegas, recurring Possession of Controlled Substance scenarios include
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.
Drug Possession and the Intent Requirement
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.
Constructive Drug Possession Theory in Nevada Example
A man is charged for drug possession, specifically, that he possessed marijuana.
The police search his two bedroom apartment. They find 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 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
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
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.”
Felony Drug Possession and Double Jeopardy Issues
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.
Drug Possession Penalties in Las Vegas
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,
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.
Subsequent Drug Possession Charges and the Notice Requirement
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.
First-Time Drug Possession Cases and Dismissal Pursuant to NRS 453.3363
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
the clients at Oronoz, Ericsson & Gaffney LLC 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.
Hire the Best Drug Possession Lawyers in Las Vegas
An arrest for, and charge of, drug possession can completely upend your life. At
Oronoz, Ericsson & Gaffney LLC we understand the terrible consequences of a conviction of this sort.
We have represented white collar professionals from all over the world
against charges of drug possession in Las Vegas. We have also represented
persons of more limited means against this charge.
Regardless of your personal circumstances, a felony conviction for drug
possession can be a life-changing experience. Lost opportunities in addition
to the loss of civil rights and possible incarceration are all potential
consequences of a conviction for drug possession. It is essential if you
or someone close to you finds themselves in this situation to call us
immediately. We are proud of our results in the area of drug crimes. We
are willing and able to help you get the
best possible result. Call us now.
Call Oronoz, Ericsson & Gaffney LLC for a
free initial case evaluation at 702-904-8858 today!