Being charged with drug possession in Utah can be scary, but it’s not the end of the world. In fact, if you get the right lawyer, your penalties and charges may be reduced. If you’ve been charged, you’re probably full of questions.
Drug Possession Charges in Utah
Depending on what kind of drugs you are found carrying in Utah, the charges aren’t always severe. For example, if you are charged with possession of marijuana, you may only face a Class B misdemeanor charge. The second time you are charged, you move up to the next level of consequences, namely a Class A misdemeanor. Charges continue to rise every time the offence is repeated. The length of time in jail also compounds by one year if a gun was involved. Understanding the different drug classifications can help you sort out what charges you face. Utah classifies drugs into Schedules I, II, III, IV, and V; the lower the number, the more dangerous the drug. A class V drug, for instance, is on par with less than an ounce of marijuana. The charges are as follows:
• Schedule I or II: third degree felony
• Schedules III, IV, or V: class B misdemeanor
• Marijuana: class B misdemeanor
There are four felony tiers: Capital, First, Second, and Third. Likewise, there are three misdemeanor levels: Class A, Class B, and Class C. The more an offence is repeated, the higher the consequence. A class A misdemeanor such as carrying a Schedule V drug rises to a third degree felony upon repeated charges. A felony is a major crime that can land you in prison with a fine. A misdemeanor is punished with county jail time and a potential fine.
Penalties for Drug Possession in Utah
The penalties for drug possession in Utah usually equal prison or jail time and a fine. A third degree felony equals 0-5 years in prison and a fine up to $5,000. A class B misdemeanor equals up to 0-6 months’ jail time and up a $1,000 fine. The recently adopted Justice Reinvestment Initiative encourages treatment over jail time. This means that although those faced with drug possession charges can very well receive jail time in exchange for their crime, they might not. The initiative encourages courts to levy opportunities for recovery instead of only incarceration. Those on probation can reduce their time in jail based on a release that is closely supervised. Those charged with drug possession are being offered the opportunity to take a class on substance abuse or joining a recovery program.
Drug Laws and Drug Crimes
Drug laws and drug crimes have gotten lots of attention in the past decade. Laws in every state and at the federal level prohibit the possession, manufacture, and sale of certain controlled substances — including drugs like marijuana, methamphetamine, ecstasy, cocaine, and heroin. Putting aside political arguments over the so-called “war on drugs,” it isn’t hard to see why controlled substances are the focus of so much attention from legislators and law enforcement. It’s estimated that drug and alcohol abuse costs society over $110 billion a year through accidental death and injuries, health care, dependency treatment, criminal behavior, and more.
Illegal Drugs vs. Legal Drugs
The legality of a drug often depends on how it is being used or what it is being used for. For example, amphetamines are used to treat attention deficit disorder, barbiturates help treat anxiety, and marijuana can help alleviate cancer-induced nausea. But unprescribed and unsupervised use of these substances (and many others) is thought to present a danger to individuals and to society in general. So, for decades, lawmakers have stepped in to regulate the use, abuse, manufacture, and sale of illegal drugs.
Federal, State, and Local Drug Laws
Though there is a longstanding federal strategy in place to combat the abuse and distribution of controlled substances, each state also has its own set of drug laws. One key difference between the two is that while the majority of federal drug convictions are obtained for trafficking, the majority of local and state arrests are made on charges of possession. Out of these state and local arrests, over half are for the possession of marijuana. Another difference between federal and state drug laws is the severity of consequences after a conviction. Federal drug charges generally carry harsher punishments and longer sentences. State arrests for simple possession (i.e. possession without intent to distribute the drug) tend to be charged as misdemeanors and usually involve probation, a short term in a local jail, or a fine depending on the criminal history and age of the person being charged.
When a federal or state government classifies a certain substance as “controlled,” it generally means that the use and distribution of the substance is governed by law. Controlled substances are often classified at different levels or “schedules” under federal and state statutes. For example, under the federal Controlled Substances Act, marijuana is listed as a “Schedule I controlled substance,” cocaine is listed under Schedule II, anabolic steroids under Schedule III, and so on. The list includes a number of medications that are fairly common you’ll find cough medicine containing low levels of codeine classified under Schedule V.
Distribution and Trafficking
As a drug charge, “distribution” usually means that a person is accused of selling, delivering, or providing controlled substances illegally. This charge is often used if someone tries to sell drugs to an undercover officer. Trafficking generally refers to the illegal sale and/or distribution of a controlled substance. Despite the name, trafficking has less to do with whether the drugs cross state lines, and more to do with the amount of drugs involved. The consequences of a conviction for distribution and trafficking vary significantly depending on:
• the type and amount of the controlled substances(s) involved
• the location where the defendant was apprehended (for example, bringing an illegal substance into the country carries higher penalties, as does distributing drugs near a school or college), and
• the defendant’s criminal history.
Sentences for distribution and trafficking generally range from 3 years and a significant fine to life in prison — with trafficking carrying higher sentences.
Under federal and state drug laws, the government can charge a person for playing a part in the cultivation or manufacture of a controlled substance. Cultivation includes growing, possessing, or producing naturally occurring elements in order to make illegal controlled substances. These elements include cannabis seeds, marijuana plants, etc. A person can also be charged for producing or creating illegal controlled substances through chemical processes or in a laboratory. Substances created this way include LSD, cocaine, methamphetamine, etc.
The most common drug charge especially in arrests made under local drug laws involves possession of a controlled substance. Generally, for a possession conviction, the government (usually in the form of a district attorney) must prove that the accused person:
• knowingly and intentionally possessed a controlled substance
• without a valid prescription, and
• in a quantity sufficient for personal use or sale.
A possession charge can be based on actual or constructive possession of a controlled substance. Constructive possession means that even if the defendant doesn’t actually have the drugs on their person (in a pocket, for example), a possession charge is still possible if the defendant had access to and control over the place where the drugs were found (a locker, for example). This is important to note because, unlike DUI/DWI laws, the government does not have to actually prove that someone is using a controlled substance in order to charge them with possession. The theory of constructive possession is often used when illegal drugs are found in a car during a traffic stop. It is also usually illegal to possess paraphernalia associated with drug use, such as syringes, cocaine pipes, scales, etc. In fact, being found in possession of these objects without any actual drugs may be enough for a person to be charged with a misdemeanor or felony. Drug charges often start with possession, but then overlap with other offenses. For example, if the police find marijuana plants in X’s storage room, X can be charged with possession of the marijuana and of cultivation equipment. If the amount of the plants is large enough, X can also face distribution, trafficking, or manufacturing charges. Charges for simple possession are often less serious than charges for possession with an intent to distribute. The difference here does not necessarily turn on an actual intent to distribute, but on the amount of the substance found in the defendant’s possession (i.e. smaller amounts are usually charged as misdemeanors, while larger amounts can be used to suggest felony possession with intent to distribute).
Many states allow diversion for first-time offenders charged with simple possession of illegal drugs. Diversion allows offenders to maintain a clean criminal record by pleading guilty and then completing a prescribed substance abuse program and not committing additional offenses. At the conclusion of the diversionary period (18 months is common) the guilty pleas is vacated, the case is dismissed, and the offender can legally claim never to have been arrested or convicted of a crime.
“Search and Seizure” Laws
The most common defense to a drug charge especially drug possession charges is a claim that a police officer overstepped search and seizure laws in detaining a person and obtaining evidence. If a defendant in a criminal case (usually through a criminal defense attorney) can prove that the police violated the defendant’s Fourth Amendment rights in finding and seizing drug evidence, that evidence may not be admissible in a criminal case against the defendant.
Utah Drug Testing Laws
Utah employers may require applicants to take a drug test as a condition of employment, as long as employers and management also submit to periodic testing. Testing may be conducted only according to the employer’s written policy, which must be available for review by prospective employees. Employers in Utah may test employees for drugs, as long as employers and management also submit to periodic testing. Employers may require testing for these reasons:
• to investigate possible individual employee impairment
• to investigate an accident or theft
• to maintain employee or public safety
• to ensure productivity, quality of products or services, or security, and
• as part of a rehabilitation, treatment, or counseling program in which the employee is participating as a condition of continuing employment after a positive drug test.
The employer must have a written drug test policy that has been distributed to employees. Testing must occur during or immediately after the employee’s regular work schedule. An employer may take action against an employee if the employee refuses to be tested or fails the test. (A failed test is a confirmed positive result for drugs, an adulterated sample, or a substituted sample.)
Legal Claims Arising From Drug Testing
Even though Utah law allows employers to drug test, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
• Violation of state laws and procedures. Although an employer has the legal right to test, it must follow the state’s requirements.
• Disability discrimination. The Americans with Disabilities Act (ADA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant’s medication was legally prescribed for a disability, the company could be liable.
• Other discrimination claims. An employer who singles out certain groups of employees for example, by race, age, or gender for drug testing could face a discrimination claim.
• Invasion of privacy. Even an employer that is allowed or required to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
• Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, the test result was inaccurate, and the employer acted maliciously in disclosing the information.
If you’re facing drug possession charges, you may have defenses available to you that aren’t immediately apparent. Whether the police collected testimony without reading your rights, or whether the prosecutors have failed to preserve incriminating evidence, a criminal defense attorney will often reveal the hole in the prosecutor’s case. If you’re dealing with a criminal matter, it’s in your best interest to contact an experienced, local criminal defense attorney as soon as possible.
Utah Drug Lawyers
When you need Drug Lawyers in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506