Here are four key things to know:
- Many first-time possession charges can be dismissed if you complete probation.
- Addicts may be eligible for Drug Court, a rehab program that results in the case being dismissed.
- You can lawfully possess up to 2.5 ounces of marijuana, but only in a private residence or licensed social use lounge.
- You can fight possession charges by arguing that you did not know the drugs were there, or the police found them through an illegal search.
In this article, our Las Vegas criminal defense attorneys answer frequently asked questions about narcotics possession laws in Nevada.
- 1. What is possession of a controlled substance in Nevada?
- 2. How does Nevada law define possession?
- 3. What types of drugs are prohibited?
- 4. Can a possession of a controlled substance charge be dropped?
- 5. What are the penalties?
- 6. Can NRS 453.336 charges be dismissed? (Drug Court)
- 7. Can I get the record sealed?
- 8. Will I get deported?
- 9. Related offenses
- 10. Do I need a lawyer?
- Additional resources
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. Though it is still a felony, and a conviction can cause you to lose out on employment and housing opportunities.
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:
- Actual possession, which is when you physically keep the narcotics on your person. An example is carrying a baggie of crack in your hand or back pocket.
- Constructive possession, which is when you store drugs in a location you have control over. An example is keeping stolen Vicodin or other prescription drugs in your dresser drawer or glove compartment.
- Joint possession, which is when you and another person(s) 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 you control, such as your body, home, car, or storage facility.
Drug possession is a separate crime from being the influence of a controlled substance (NRS 453.411). You can be arrested for being high whether or not you are in possession of 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.
NRS 453.336 prohibits you from having any controlled substance without a current doctor’s prescription in Nevada. (The only exception is that adults 21 or older may possess up to two-and-a-half ounces of marijuana.)
Controlled substances are categorized into five different schedules.3
The best way to fight Nevada drug possession charges turns on the facts of the case. Two common defenses include:
- You did not know about the drugs; or
- 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
If you honestly had no idea that drugs were on your body or property, you 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 the Las Vegas drug crime of possession.
Common evidence in NRS 453.336 cases includes surveillance video, eyewitness testimony, and recorded communications such as text messages by you.
4.2. The police conducted an illegal search
Law enforcement 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 drug crime charges for lack of proof.
Possession penalties in Nevada depend on the type of drug and whether you have past drug offenses. As discussed in the next section, you may be able to get the charge dismissed.6
Nevada Possession Penalties (NRS 453.336)
|Schedule I or II – less than 14 grams; or
Schedule III, IV, or V – less than 28 grams
“Possession of a Controlled Substance”
A first or second offense is a category E felony. If you plead guilty or no contest, courts will grant a deferral of judgment. This means the case will be dismissed if you complete various sentencing terms, which typically includes fines and rehab. If you do not complete the terms, the court may convict you of a category E felony. Category E penalties include probation and a suspended sentence, but the court may impose up to 1 year in jail. If you have two or more prior felony convictions, you face a possible sentence of 1 to 4 years in prison and up to $5,000 in fines.
A third or subsequent offense is a category D felony. (This includes any past drug-related convictions throughout the U.S.). Penalties include:
|Schedule I or II – 14 grams to less than 28 grams; or
Schedule III, IV, or V –28 grams to less than 200 grams
“Low-level Possession of a Controlled Substance”
|Schedule I or II –28 grams to less than 42 grams; or
Schedule III, IV, or V –200 grams or more
“Mid-level Possession of a Controlled Substance”
|Schedule I or II – 42 grams to less than 100 grams
“High-level Possession of a Controlled Substance”
Category B felony:
|Gamma-hydroxybutyrate (GHB); or
|Public consumption of marijuana
For more information about marijuana penalties, see our article on marijuana possession.
Note that drug possession is both a Nevada state and federal crime. If you are caught with drugs on federal land, you will likely be charged in federal court rather than state court. Learn more about federal drug possession laws (21 U.S.C. § 844).
Also note that driving high is prosecuted as driving under the influence in Nevada, the same as if the driver was drunk.
You may be able to get your possession charge dismissed by deferred judgment, which may include doing Drug Court. This is a type of alternative sentencing involving an intensive rehabilitation program.7
- an order not to get arrested again while the case is pending,
- community service, and
- a suspended jail sentence, which means you do no jail as long as you complete 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 are resolved without a trial. If negotiations fail, you may demand a jury trial where the prosecution has the burden to prove guilt beyond a reasonable doubt. If the jury acquits you, the case will be dropped.
Yes, drug convictions are usually sealable after a waiting period. The length of this wait depends on the specific crime category you were convicted of. Meanwhile, drug charges that get dismissed may be sealed right away.8
Drug possession conviction
Criminal record seal waiting period in Nevada
|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)
Learn about how to petition for a Nevada record seal.
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.
9.1. 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. Though you may be eligible for probation if it is your first offense.
Selling narcotics (NRS 453.321) is the second most serious drug crime under Nevada state law. It does not matter whether the drugs are being traded for cash, jewelry, or other items of value. However, if you have no prior convictions, you may be eligible for probation.
Manufacturing drugs (NRS 453.322) is a serious felony. Merely possessing drug-making chemicals violates NRS 453.322 if you have the intention of using them to make drugs.
Possessing, making, transporting, or selling large quantities of Schedule I or II drugs is charged as trafficking in the state of Nevada. Drug trafficking is the most harshly punished drug crime in the state. However, if you help police investigate other cases, you might be able to avoid prison. Learn more about trafficking drugs (NRS 453.3385).
Having a criminal defense lawyer increases your odds of getting drug charges reduced or dismissed. A good law office can do a thorough investigation of the state’s case in search of every inconsistency and weakness. Prosecutors are usually more willing to negotiate when you have private counsel.
If you have been arrested or have questions about Nevada drug laws, we invite you to contact us. We may be able to get your Nevada possession charges lessened or even dismissed so your record remains clean.
For more information on Nevada drug crimes, see our related articles:
- Can a felony drug possession charge be reduced to a misdemeanor in Nevada? – discussion of plea bargain possibilities in drug cases
- When is drug possession in Las Vegas a federal crime? – overview of when the feds have jurisdiction over possession cases
- DUI of drugs – an in-depth look of the Nevada crime of driving under the influence of drugs
- Is cocaine a felony in Nevada? – a deep dive into how cocaine crimes are prosecuted
- Good Samaritan Drug Overdose Act – a guide to how to report ODs without fearing arrest and prosecution
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.
- NRS 453.336. Unlawful possession not for purpose of sale: Prohibition; penalties; exception.
1. Except as otherwise provided in subsection 6, a person shall not knowingly or intentionally possess a controlled substance, unless the substance was obtained directly from, or pursuant to, a prescription or order of a physician, physician assistant licensed pursuant to chapter 630 or 633 of NRS, dentist, podiatric physician, optometrist, advanced practice registered nurse or veterinarian while acting in the course of his or her professional practice, or except as otherwise authorized by the provisions of NRS 453.005 to 453.552, inclusive.
2. Except as otherwise provided in subsections 3, 4 and 5 and in NRS 453.3363, and unless a greater penalty is provided in NRS 212.160, 453.3385 or 453.339, a person who violates this section: (a) For a first or second offense, if the controlled substance is listed in schedule I or II and the quantity possessed is less than 14 grams, or if the controlled substance is listed in schedule III, IV or V and the quantity possessed is less than 28 grams, is guilty of possession of a controlled substance and shall be punished for a category E felony as provided in NRS 193.130. In accordance with NRS 176.211, the court shall defer judgment upon the consent of the person. (b) For a third or subsequent offense, if the controlled substance is listed in schedule I or II and the quantity possessed is less than 14 grams, or if the controlled substance is listed in schedule III, IV or V and the quantity possessed is less than 28 grams, or if the offender has previously been convicted two or more times in the aggregate of any violation of the law of the United States or of any state, territory or district relating to a controlled substance, is guilty of possession of a controlled substance and shall be punished for a category D felony as provided in NRS 193.130, and may be further punished by a fine of not more than $20,000. (c) If the controlled substance is listed in schedule I or II and the quantity possessed is 14 grams or more, but less than 28 grams, or if the controlled substance is listed in schedule III, IV or V and the quantity possessed is 28 grams or more, but less than 200 grams, is guilty of low-level possession of a controlled substance and shall be punished for a category C felony as provided in NRS 193.130. (d) If the controlled substance is listed in schedule I or II and the quantity possessed is 28 grams or more, but less than 42 grams, or if the controlled substance is listed in schedule III, IV or V and the quantity possessed is 200 grams or more, is guilty of mid-level possession of a controlled substance and shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years and by a fine of not more than $50,000. (e) If the controlled substance is listed in schedule I or II and the quantity possessed is 42 grams or more, but less than 100 grams, is guilty of high-level possession of a controlled substance and shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years and by a fine of not more than $50,000.
3. Unless a greater penalty is provided in NRS 212.160, 453.337 or 453.3385, a person who is convicted of the possession of flunitrazepam or gamma-hydroxybutyrate, or any substance for which flunitrazepam or gamma-hydroxybutyrate is an immediate precursor, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years.
4. Unless a greater penalty is provided pursuant to NRS 212.160, a person who is convicted of the possession of 2.5 ounces or less of marijuana is guilty of a misdemeanor and shall be punished by: (a) Performing not more than 24 hours of community service; (b) Attending the live meeting described in paragraph (a) of subsection 2 of NRS 484C.530 and complying with any other requirements set forth in that section; or (c) Being required to undergo an evaluation in accordance with subsection 1 of NRS 484C.350, -> or any combination thereof.
5. Unless a greater penalty is provided pursuant to NRS 212.160, a person who is convicted of the possession of more than 2.5 ounces, but less than 50 pounds, of marijuana or more than one-fourth of an ounce, but less than one pound, of concentrated cannabis is guilty of a category E felony and shall be punished as provided in NRS 193.130.
6. It is not a violation of this section if a person possesses a trace amount of a controlled substance and that trace amount is in or on a hypodermic device obtained from a sterile hypodermic device program pursuant to NRS 439.985 to 439.994, inclusive.
7. The court may grant probation to or suspend the sentence of a person convicted of violating this section.
8. If a person fulfills the terms and conditions imposed for a violation of subsection 4, the court shall, without a hearing, order sealed all documents, papers and exhibits in that person’s record, minute book entries and entries on dockets, and other documents relating to the case in the custody of such other agencies and officers as are named in the court’s order. The court shall cause a copy of the order to be sent to each agency or officer named in the order. Each such agency or officer shall notify the court in writing of its compliance with the order.
9. As used in this section: (a) “Controlled substance” includes flunitrazepam, gamma-hydroxybutyrate and each substance for which flunitrazepam or gamma-hydroxybutyrate is an immediate precursor. (b) “Marijuana” does not include concentrated cannabis. (c) “Sterile hypodermic device program” has the meaning ascribed to it in NRS 439.986.
- Palmer v. State (Nev. 1996) 920 P.2d 112, 115; Maskaly v. State (Nev. 1969) 450 P.2d 790, 792. Locker v. State (Nev. 2022) 516 P.3d 149. LaChance v. State (Nev. 2014) 321 P.3d 919.
- NRS 453.336; DEA Drug Scheduling.
- NRS 453C.150.
- NRS 453.336.
- NRS 453.336.
- See, for example, Clark County Drug Court.
- Nevada Revised Statutes 179.245; NRS 179.255.
- 8 U.S.C. § 1227(a)(2)(B).