Drug Offenses in Indiana

Law enforcement officers frequently overlook constitutional rights in their zeal to fight and win the “war on drugs.” If you are being questioned about or arrested for a drug offense in Indiana, you need to talk to the experienced criminal defense attorneys at the Marc Lopez Law Firm.

You have rights guaranteed under both the Indiana and United States Constitutions — including the right to an attorney. Every word you utter in the presence of the police can be used against you, regardless of the context in which you say it. A sarcastic confession can be just as damaging as a sincere one. If you are being questioned, before saying anything to the police, it is vital that you exercise your right to an attorney and contact the Marc Lopez Law Firm to represent you.

What is a “Drug” in Indiana?

What qualifies as a drug when it comes to possession charges? Under Indiana Code § 16-42-19-2, a “drug” is anything that can be:

Intended to be used for the “diagnosis, cure, mitigation, treatment, or prevention of disease in human beings or animals,”
Articles that are intended to “affect the structure or any function of the body in human beings or animals,” or
Any article recognized by the United States Pharmacopeial Convention in their supplements printed after 1990.

Further, according to Indiana Code § 35-48-1-16, “drug” can also include any “controlled substance” and its analog.

What are Controlled Substances?

In Indiana, a controlled substance refers to any “drug, substance, or immediate precursor in schedule I, II, III, IV, or V.” Ind. Code § 35-48-1-9. There are far too many “controlled substances” to list here, however, the Indiana Code does outline each controlled substance, listed in its respective schedule. Some of the most common controlled substances include marijuana, cocaine, and methamphetamines. A list of all controlled substances under each schedule can be found in different sections of the Indiana Code here:

Schedule I | § 35-48-2-4
Schedule II | § 35-48-2-6
Schedule III | § 35-48-2-8
Schedule IV | § 35-48-2-10
Schedule V | § 35-48-2-12

The charges for possession of a controlled substance range between a Class C misdemeanor and a Level 2 Felony. The severity of the charges can quickly increase and are dependent on (1) the schedule of the substance, and (2) the quantity of the substance in possession at the time of arrest.

Two Types of Drug Possession

In Indiana, there are two types of drug possession you can be charged with: actual and constructive. While both types of possession can land a person in jail, constructive possession of drugs is much harder for the State to prove. So what is the difference?

Actual Possession

Actual possession is exactly what it sounds like: when the police find drugs on your person, which can include your clothing. The Indiana Court of Appeals held that actual possession “occurs when a defendant has direct physical control over an item.” Griffin v. State, 945 N.E.2d 781, 783 (Ind. App. 2011). When charged with actual possession, attacking the possession itself is usually not the best legal strategy. There are other strategies to fighting this type of charge, including questioning whether the police had probable cause to stop and search you.

Constructive Possession

Constructive Possession Charges in Indiana are much more complicated for the State of Indiana. Constructive possession usually becomes an issue when police find drugs in a home or vehicle occupied by more than one person. The Indiana Court of Appeals held that constructive possession “occurs when a person has the intent and capability to maintain dominion and control over the item.” Griffin v. State, 945 N.E.2d 781, 783 (Ind. App. 2011). If drugs are recovered in a common area (such as the trunk)—or if they are found in an area that suggests not all passengers were aware of their presence—law enforcement will use various factors to determine possession. These factors include:

incriminating statements made by any of the passengers;
attempts to flee made by passengers;
incriminating movements made by passengers;
how close the drugs were to each of the persons in the vehicle;
whether the drugs were in plain view of anyone; and
whether any personal items were located with the drugs.

Regardless of what type of possession case the State has against you, it is in your best interest to have an experienced criminal defense attorney fighting for you. The penalties for drug charges—even first offenses—can result in years in jail.

Consequences of Drug Offenses

The severity of the possession charge varies greatly and the State takes two things into consideration when filing charges: (1) the amount of the controlled substance in possession at the time of arrest, and (2) what schedule the controlled substance falls under. Because of this, drug offenses in Indiana can range from a Class C misdemeanor, which can carry a penalty of up to 60 days in jail and a fine of up to $500, to a Level 2 felony, which can carry a penalty of 30 years in prison and a $10,000 fine.

The most common type of drug offense in Indiana is possession of marijuana. Indiana Code § 35-48-4-11 outlines the different possible charges:

It is a Class B misdemeanor if a person commits possession of marijuana, hash oil, hashish, or salvia:

“(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, hashish, or salvia;

(2) knowingly or intentionally grows or cultivates marijuana; or

(3) knowing that marijuana is growing on the person’s premises, fails to destroy the marijuana plants;”

It is a Class A misdemeanor if a person commits one of the offenses above, and:

“(1) the person has a prior conviction for a drug offense; or

(2) the:

(A) marijuana, hash oil, hashish, or salvia is packaged in a manner that appears to be low THC hemp extract; and

(B) person knew or reasonably should have known that the product was marijuana, hash oil, hashish, or salvia.”

It is a Level 6 felony if a person commits one of the offenses above under the Class B misdemeanor section, and:

“(1) the person has a prior conviction for a drug offense; and

(2) the person possesses:

(A) at least thirty (30) grams of marijuana; or

(B) at least five (5) grams of hash oil, hashish, or salvia.

As outlined above, it is easy to see how a possession charge can escalate in severity from a misdemeanor to a felony. A possession charge of any controlled substance can quickly increase in severity and have lasting consequences on a person’s life. It is important to hire a criminal defense attorney if you or someone you know has been charged with a drug crime. The Marc Lopez Law Firm has multiple attorneys who are skilled in defending drug charges.

Future Consequences

In addition to the possibility of jail time and fines, there are a number of other penalties you could be facing. These are known as collateral consequences and the courts are not required to advise you of these. Collateral consequences can have huge impacts on your future and can include:

Sentencing enhancements on subsequent drug charges.

A conviction for a drug crime will cause you to receive a stiffer penalty if you ever get caught with drugs again. In some circumstances, what would normally count as a misdemeanor will be charged as a felony if new charges are ever filed. –Mistakes are always worse when you repeat them.

Loss of Federal Student Aid eligibility.

Any drug conviction—even misdemeanor marijuana possession—makes you ineligible to receive Federal Student Aid. If you’re relying on government assistance to finance your education, the last thing you want is a drug conviction. Accepting a quick plea deal can sabotage your academic plans. This applies to other federal programs as well, including food stamps and subsidized housing. –Do not take your future for granted.

Diminished Second Amendment rights.

Drug convictions can also interfere with your ability to legally own or possess a firearm. If you’re convicted of a drug-related felony, federal law prohibits you from owning a gun.

–Do not take a drug charge lightly.

Loss of parental rights.

A drug charge and conviction will likely have a negative effect on your parenting rights and may be taken into consideration by a family law judge.

–Think of the children.

Make the Right Call

If you or a loved one is facing criminal charges for drug possession, contact the Marc Lopez Law Firm by email, or give us a call at 317-632-3642. And remember—always plead the 5th!

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