6.608 — POSSESSION OF A CONTROLLED SUBSTANCE (SCHEDULE III & SCHEDULE IV)

Violations of "Statute 6.608" results in a Class B Misdemeanor

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(a) Definitions

Possession of a controlled substance classified under Schedule III and Schedule IV refers to the unlawful possession of drugs that are recognized for medical use but are controlled due to their potential for abuse, dependency, or misuse. Schedule III substances include drugs with a moderate to low potential for physical or psychological dependence, while Schedule IV substances have an even lower risk of abuse. These substances are available through a medical prescription, but their unauthorized possession is prohibited. Examples include anabolic steroids, ketamine (Schedule III), and medications like Xanax or Valium (Schedule IV).

(b) Elements

To establish the offense of possession of a controlled substance under Schedule III or Schedule IV, the prosecution must prove beyond a reasonable doubt the following elements:

1. The defendant knowingly possessed a controlled substance that is classified as Schedule III or Schedule IV under applicable drug laws.

2. The defendant’s possession of the substance was unlawful, meaning they had no legal right, such as a prescription or other legal authorization, to possess the substance.

3. The defendant had actual or constructive possession of the controlled substance. Actual possession means the substance was directly on the defendant’s person, while constructive possession means the defendant had control or dominion over the substance, even if it was not directly in their possession.

(c) Defenses

Defenses against a charge of possession of a controlled substance in Schedule III or Schedule IV may include:

1. The defendant did not know that the substance they were in possession of was a controlled substance or that they were even in possession of it.

2. The defendant did not possess the controlled substance, either directly or indirectly, and had no control over it.

3. The defendant was in lawful possession of the substance due to a valid prescription issued by a licensed medical professional.

4. The evidence of possession was obtained through an unlawful search and seizure that violated the defendant’s rights under the Fourth Amendment.

(d) Aggravating Factors

The court may consider the following aggravating factors when determining the severity of the offense:

1. The defendant has a prior history of drug-related offenses, which could result in more severe penalties.

2. The defendant possessed the substance with the intent to distribute or sell it, as evidenced by the quantity of the substance, packaging, or other circumstantial evidence.

3. The defendant was found in possession of a significant quantity of the controlled substance, suggesting an intent to distribute rather than personal use.

4. The defendant was in possession of the controlled substance near a school or other public area where children or vulnerable individuals are likely to be present, which may result in harsher penalties.