Drug Possession

The crime of drug possession in D.C. requires (1) knowing or intentional (2) possession of (3) a controlled substance.  The charge is subject to the affirmative defense that the substance in question was possessed pursuant to a valid prescription.

Elements of the Offense

In order to make out this charge, the prosecution must first prove that the defendant “possessed” the substance.  This could be actual possession.  The defendant could, for example, have the drugs in his hands or pocket at the time he is stopped by police.  Alternatively, the drugs could be in the defendant’s “constructive” possession.  This means that, while the contraband may not actually be on the defendant’s person, the defendant both knew about the drugs and had the ability and intent to exercise control over the drugs.

As with most other criminal charges, the prosecution must also prove criminal intent, or mens rea.  There could be “negligent” possession in which the defendant should have known that the possessed substance was contraband.  There could be “reckless” possession in which the defendant disregarded specific indications that he possessed an illegal substance.  Or, as in this case, the prosecution is required to prove “knowing” or “intentional” possession by the defendant.  This means that the defendant knew very well that the substance he possessed was contraband but intended to possess it nonetheless.

The third and final element the prosecution must prove is that the drug recovered from the defendant is a “controlled substance”; that is, that it is included on the list of substances that are not able to be legally possessed without a valid proscription under the D.C. Controlled Substances Act.

The Controlled Substances Act groups substances that a person is not allowed to possess without a valid prescription into five categories — or “schedules.”  Schedule I includes those substances (e.g., LSD and certain opiates) for which the legislature has determined there is a high potential for abuse and no accepted medical use in treatment.  Schedule II includes substances (e.g., oxycodone, amphetamines, PCP, and some opiates) for which there is a high potential for abuse and only severely restricted uses in medical treatment.  And so on to Schedule V, which includes controlled substances with a low potential for abuse, many uses in medical treatment, and low potential for physical or psychological dependence.


Simple possession of a controlled substance in D.C. is a misdemeanor, with a maximum penalty for a first conviction of 180 days on incarceration and a $1000 fine.  The maximum penalty for a second or subsequent conviction would be double that.

If this is the first drug conviction for the defendant either in D.C. or anywhere else in the United States, the court can put the defendant on probation for up to a year and defer an adjudication of guilt.  If the defendant successfully completes the probationary period, the court can dismiss the case, and the defendant can have the arrest completely expunged from his/her record.  The court can also dismiss the case early, before the expiration of the probationary period, if the person seems to be complying with the terms of probation.  If, however, the defendant violates the terms of the probation, the court can enter an adjudication of guilt without any further proceedings and sentence the person accordingly.  D.C. Code 48-904.01.