NRS 453.336 - Nevada "Drug Possession" Laws


NRS 453.336
is the Nevada drug law that prohibits drug possession. The statute states that a "person shall not knowingly or intentionally possess a controlled substance, unless the substance was obtained directly from ... a prescription."

Possession is a usually prosecuted as a felony. Though first-time defendants may avoid a conviction by completing a class or Drug Court.

Nevada law does permit recreational marijuana possession of up to one ounce, but only in private residences by adults 21 and older. Learn more about marijuana laws.

In this article, our Las Vegas criminal defense attorneys answer frequently-asked-questions about narcotics possession laws in Nevada.

chalkboard (NRS 453.336)
First-time offenders charged with violating NRS 453.336 may be able to get the case dismissed by taking a drug education class.

1. What is possession of a controlled substance in Nevada?

Possession of a controlled substance is deliberately owning or having control over drugs with no plan to sell them.1 Other common terms for drug possession include:

  • PCS (short for possession of a controlled substance)
  • straight possession
  • simple possession
  • possession of drugs for personal use
  • recreational possession

Drug possession is one of the least serious narcotics crimes because it usually involves small quantities and no pending drug sales. But it is still a felony, and a conviction can cause defendants to lose out on employment and housing opportunities.

2. How does Nevada law define possession?

Possessing means to knowingly exercise control. This is not the same as ownership. Stealing drugs puts the thief in possession of those drugs even though the thief does not own them.

There are three types of illegal drug possession in Nevada:

  1. Actual possession, which is when people physically keep the narcotics on their person. An example is carrying a baggie of crack in their hand or back pocket.
  2. Constructive possession, which is when people store drugs in a location they have control over. An example is keeping stolen Vicodin in their dresser drawer or glove compartment. 
  3. Joint possession, which is when two or more people share control or ownership of the same drug. An example is a wife letting her husband keep heroin in their fridge -- both spouses can be prosecuted for possession even if the wife does not use the heroin herself.2

Therefore, "possession of drugs" has a broad legal meaning. It extends to any location people control, such as their body, home, car, or storage facility.

Drug possession is a separate crime from being the influence of a controlled substance (NRS 453.411). People can be arrested for being high whether or not they are in possession of drugs:

snorting cocaine
Being high is a different crime than possesing drugs.

Example: Sarah takes ecstasy at a party and walks home. A police officer sees her stumbling and arrests her for being under the influence of drugs. But since Sarah had no ecstasy in her possession, she should not face possession charges. It does not matter that Sarah recently possessed ecstasy in order to get high.

Drug possession is also a separate crime from possession of drug paraphernalia (NRS 453.566). If Sarah in the above example had a crack pipe or syringe on her, she could face charges for paraphernalia possession but not drug possession.

3. What types of drugs are prohibited?

NRS 453.336 prohibits people in Nevada from having any controlled substance without a current doctor's prescription. (The only exception is that adults 21 or older may possess up to one ounce of marijuana.)

Controlled substances are categorized into five different schedules.3

Controlled substances

Examples

Schedule I

Schedule II

Schedule III

Schedule IV

Schedule V

  • Robitussin AC
  • Codeine (no more than 200 milligrams per 100 grams)
  • Opium (no more than 100 milligrams per 100 grams)

4. What are the defenses?

The best way to fight Nevada drug possession charges turns on the facts of the case. Two common defenses include:

  1. The defendant did not know about the drugs; or
  2. The police conducted an illegal search.

Also, Good Samaritans who report an overdose are immune from drug possession charges.4

4.1. No knowledge of the drugs

People who honestly had no idea that drugs were on their body or property broke no law.5

Example: Josh borrows Henry's car and leaves his Percocet under the passenger seat without telling Henry. Henry is not guilty of possession because he does not know drugs are in his car. But if Henry finds the pills and decides to keep them, then he could face prosecution for possession.

Common evidence in NRS 453.336 cases includes surveillance video, eyewitness testimony, and recorded communications such as text messages by the defendant.

4.2. The police conducted an illegal search

sign.
Warrantless searches are unlawful unless the police have a valid excuse.

The police may conduct searches and seizures that adhere to the Fourth Amendment. But sometimes police overstep their bounds and obtain evidence through unlawful means.

When the police break the law, the defense attorney can ask the judge to disregard any illegally-obtained evidence. This is called a motion to suppress evidence. If the judge grants this motion, the prosecution might have to dismiss the whole case for lack of proof.

5. What are the penalties?

Possession penalties in Nevada depend on the type of drug and whether the defendant has past drug offenses. As discussed in the next section, defendants with no prior drug convictions may be able to get the charge dismissed.6

For information about marijuana penalties, see our article on marijuana possession.

Type of Drug

Penalties for Possession in Nevada

Schedule I (except marijuana),

Schedule II,

Schedule III, or

Schedule IV

1st or 2nd offense

Category E felony:

3rd or subsequent offense

Category D felony:

  • 1 – 4 years in prison, and
  • Possibly up to $20,000 in fines

Schedule V

1st offense

Category E felony:

  • 1 – 4 years in prison*, and
  • Possibly up to $5,000 in fines

2nd or subsequent offense

Category D felony:

  • 1 – 4 years in prison, and
  • Possibly up to $5,000 in fines

Flunitrazepam, or

Gamma-hydroxybutyrate (GHB)

Category B felony

  • 1 – 6 years in prison

 *The judge will typically grant probation instead of incarceration for a first-time offense.

Note that drug possession is both a Nevada state and federal crime. People caught with drugs on federal land will likely be charged in federal court rather than state court. Learn more about federal drug possession laws (21 U.S.C. § 844).

6. Can NRS 453.336 charges be dismissed? (Drug Court)

Defendants with no prior drug convictions may be able to get their possession charge dismissed by taking a drug education course. And defendants struggling with addiction may be able to get the charge dismissed by doing Drug Court. This a type of alternative sentencing involving an intensive rehabilitation program.7

Otherwise, prosecutors may be willing to reduce the felony possession charge down to a misdemeanor narcotics charge under NRS 454.351. The standard sentence for this plea bargain includes:

gavel and sign
Prosecutors are often willing to reduce or dismiss first-time drug offenses as part of a plea bargain.
  • probation,
  • rehab,
  • an order not to get arrested again while the case is pending,
  • community service, and
  • a suspended jail sentence, which means the defendant does no jail as long as he/she completes the above terms.

As discussed above in section 4, the best-case scenario is to win a possession case on the merits. A defense attorney's first goal is to convince prosecutors that their evidence is too weak to sustain a conviction. Then the prosecutors may drop the charges without any conditions.

The vast majority of drug possession cases resolve without a trial. But if negotiations fail, defendants may demand a jury trial where the prosecution has the burden to prove guilt beyond a reasonable doubt. If the jury acquits the defendant, the case will be dropped.

7. Can I get a record sealed?

Yes, drug convictions are usually sealable after a waiting period. The length of this wait depends on the specific crime category the defendant was convicted of. Meanwhile, drug charges that get dismissed may be sealed right away.8

Drug possession conviction

Record seal waiting period in Nevada

Misdemeanor

1 year after the case ends

Category E felony

2 years after the case ends

Category D felony, or

Category B felony

5 years after the case ends

No conviction (dismissal)

Immediately

Learn about how to petition for a Nevada record seal.

8. Will I get deported?

Any non-citizen can be deported from the U.S. for drug possession. The only exception is if the drug was 30 grams or less of marijuana.9

Immigrants facing drug charges are advised to hire an experienced attorney as soon as possible. The attorney may be able to persuade the prosecutor to reduce or dismiss the charges. This in turn could take deportation off the table.

9. Related drug offenses

9.1. Possession for sale

Drug possession with the intent to sell (NRS 453.337 & NRS 453.338) is a more serious crime than possession for personal use. It is always prosecuted as a felony in Nevada. But first-time defendants may be eligible for probation.

cash and handcuffs
Drug dealers face harsher penalties than drug users.

9.2. Selling

Selling narcotics (NRS 453.321) is the second most serious drug crime in Nevada. It does not matter whether the drugs are being traded for cash, jewelry, or other items of value. However, defendants with no prior convictions may be eligible for probation.

9.3. Trafficking

Possessing, making, transporting, or selling large quantities of schedule I or II drugs in Nevada is charged as trafficking. Trafficking is the most harshly punished drug crime in the state. But defendants who help police investigate other cases might be able to avoid prison. Learn more about trafficking drugs (NRS 453.3385 & NRS 453.3395).

10. Do I need an attorney?

Having an attorney increases a defendant's odds of getting drug charges reduced or dismissed. Attorneys can do a thorough investigation of the state's case in search of every inconsistency and weakness. And prosecutors are usually more willing to negotiate when defendants have private counsel.

If you have been arrested, call us at 702-DEFENSE (702-333-3673) today. We may be able to get your Nevada possession charges lessened or even dismissed so your record remains clean.

Receptionists waiting for your call.
Call our Las Vegas criminal defense attorneys at 702-DEFENSE for a FREE consultation today.

¿Habla español? Más información sobre el delito de posesión de drogas Nevada.

Arrested in California? See our article on Health & Safety Code 11350 HS: Possession of a Controlled Substance.

Arrested in Colorado? See our article on Unlawful Possession of a Controlled Substance (18-18-403.5 C.R.S.)

Are you struggling with substance abuse? You are not alone. Learn about Narcotics Anonymous. It is an international organization offering a twelve-step program to overcome addiction.


Legal References

  1. NRS 453.336.
  2. Palmer v. State, 112 Nev. 763, 768-769, 920 P.2d 112, 115 (1996); Maskaly v. State, 85 Nev. 111, 114, 450 P.2d 790, 792 (1969).
  3. NRS 453.336; DEA Drug Scheduling.
  4. NRS 453C.150.
  5. NRS 453.336.
  6. NRS 453.336.
  7. See, e.g., Clark County Drug Court.
  8. NRS 179.245; NRS 179.255.
  9. 8 U.S.C. § 1227(a)(2)(B).

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