First or second time possession of a Schedule I, II, III or IV controlled substance a Category E felony that carries 1 to 4 years in prison and up to $5000.00 in fines. Some first-time defendants may avoid a conviction by completing a class or Drug Court.
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?
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.
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 people physically keep the narcotics on their person. An example is carrying a baggie of crack in their hand or back pocket.
- Constructive possession, which is when people store drugs in a location they have control over. An example is keeping stolen Vicodin or other prescription drugs in their dresser drawer or glove compartment.
- 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:
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 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
|Schedule III|| |
|Schedule IV|| |
|Schedule V|| |
The best way to fight Nevada drug possession charges turns on the facts of the case. Two common defenses include:
- The defendant 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
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 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 the defendant.
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 the defendant has past drug offenses. As discussed in the next section, certain defendants 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. For defendants who plead guilty or no contest, courts will grant a deferral of judgment. This means the case will be dismissed if the defendant completes various sentencing terms, which typically includes fines and rehab. If the defendant does not complete the terms, the court may convict the defendant 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. Defendants with two or more prior felony convictions 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 |
|Category B: |
|Possession in public of: |
One ounce or less of marijuana; or
A one-eighth ounce or less of concentrated cannabis
Misdemeanor: $600 fine or rehab
Misdemeanor: $1,000 fine or rehab
Fourth or subsequent offense
Category E felony:
Probation and suspended sentence, which can include up to 1 year in county jail. If the defendant has two or more prior felony convictions, the court can impose one to four years in prison and up to a $5,000 fine
For more information about marijuana penalties, see our article on marijuana possession.
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).
Also note that driving high is prosecuted as driving under the influence in Nevada, the same as if the driver was drunk.
Eligible defendants may be able to get their possession charge dismissed by deferred judgment, which may include 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:
- 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.
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
Criminal 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.
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. But first-time defendants may be eligible for probation.
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, defendants with no prior convictions may be eligible for probation.
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. But defendants who help police investigate other cases might be able to avoid prison. Learn more about trafficking drugs (NRS 453.3385).
Having a criminal defense lawyer increases a defendant’s 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. And prosecutors are usually more willing to negotiate when defendants have private counsel.
If you have been arrested, call us today. We may be able to get your Nevada possession charges lessened or even dismissed so your record remains clean.
¿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.
- NRS 453.336.
- 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).
- NRS 453.336; DEA Drug Scheduling.
- NRS 453C.150.
- NRS 453.336.
- NRS 453.336.
- See, e.g., Clark County Drug Court.
- Nevada Revised Statutes 179.245; NRS 179.255.
- 8 U.S.C. § 1227(a)(2)(B).