Possession of Controlled Substances

Drugs that are illegal to possess in Massachusetts are classified into five categories, and each category carries different penalties for possession of those substances.

What Does “Possession” Mean?

To prove you guilty of possession of a controlled substance, the government must prove that you had the substance in your “possession, custody or control.”  Maybe the best explanation of what this means is the instruction that judges give jurors at trials in which the possession of something is an element of the charge against them.

The Massachusetts jury instruction for the proof of “Possession”:

“What does it mean to “possess” something? A person obviously
“possesses” something if he (she) has direct physical control or custody of
it at a given time. In that sense, you possess whatever you have in your
pocket or purse right now.

However, the law does not require that someone necessarily have
actual physical custody of an object to “possess” it. An object is
considered to be in a person’s possession without physical custody if he
(she) has:

• knowledge of the object,
• the ability to exercise control over that object, either directly or
through another person, and
• the intent to exercise control over the object .

For example, the law considers you to be in possession of things
which you keep in your bureau drawer at home, or in a safe deposit box at your bank.

Whether the defendant possessed is something that you
must determine from all the facts and any reasonable inferences that you
can draw from the facts. However, I caution you to remember that merely
being present in the vicinity of a , even if one knows that it is
there, does not amount to possession.

Neither is possession proved simply because the
defendant was associated with a person who controlled the motor vehicle
or the property where was found.

To show possession, there must be evidence justifying a conclusion
that the defendant had knowledge of the controlled substance coupled with the ability
and the intent to exercise control over the . Only then may the
defendant be considered to have possessed the controlled substance.”


Controlled Substance Classification in Massachusetts.

Massachusetts classifies controlled substances on a 5 tier, A through E scale.

Class A – Some examples of class A drugs are heroin, morphine, codeine, or ketamine, although other drugs are listed as class A. These drugs are considered to be the most dangerous of controlled substances and carry the harshest possession penalties.

Class B – While not classified as dangerous as class A drugs, class B drugs are still considered very dangerous and the possession of these drugs will carry harsh penalties. Drugs considered to be class B are cocaine, crack, PCP, LSD, or amphetamines.

Class C – Class C drugs will carry less harsh penalties than classes A or B, and these drugs include mescaline, diazepam, or peyote.

Class D – Class D drugs are considered to be less dangerous on the controlled substance scale, and this class includes marijuana, hashish, or any drug containing THC as its psychoactive component.

Class E – Class E drugs include prescription medication, and if a person is found not to have a prescription for the class E drugs they are in possession of they may face criminal drug possession charges.

Each class of controlled substances carries its own penalties for possession. Class A drug possession holds the harshest penalties for even small amounts of the drug, while the penalties incurred for possessing classes D or E drugs are much lower.


Penalties for Controlled Substance Possession.

Class A – The possession of a class A substance will come with a period of incarceration of up to 2 years in jail for a first time offense, and these penalties can go as high as 5 years in prison for subsequent offenses. These charges may also come with potential fines that go as high as $2,000, or $5,000 if the drug in question is heroin.

Class B – A first time offender may receive up to a year in jail, while those with past convictions could face 2 years in jail. These charges may also come along with fines.

Class C – Possession of a class C substance in the state of Massachusetts is similar to possession of a class B substance in terms of penalties. Often, a first time offender will face up to a year in jail as well as fines, while the penalties will grow with subsequent offenses.

Class D – Marijuana laws have changed recently, making the possession of marijuana for recreational use legal.  Go here to see the laws about marijuana possession.

Class E – Possession of a class E substance in the state of Massachusetts may result in a misdemeanor charge as well as probation and/or a fine.

Special Case: Possession Of Heroin in Massachusetts.

Heroin possession carries some of the weightiest penalties in the state of Massachusetts. Although a class A drug, heroin possession and other heroin related charges will often carry penalties harsher than those for other Class A substances.

A first time offender facing heroin possession charges may be forced to pay a fine of up to $2,000 as well as a 2 year prison sentence.

For subsequent charges, a convicted person could then face up to 5 years in prison as well as a fine of up to $5,000. Also, while the possession of other classes of drugs will often come with a misdemeanor charge, heroin possession is more likely to be considered a felony.

Special Case: Knowingly Being Present Where Heroin is Kept.

Knowingly being present where heroin is kept is a misdemeanor under Massachusetts General Laws Chapter 94C Section 35. You can be convicted of this crime if the District Attorney proves beyond a reasonable doubt either:

  • That you knew you were at a place where heroin was kept or deposited; or
  • That you were with another person who you knew to be in possession of heroin.

It is not a crime to be present where drugs other than heroin are present, even if you are aware of it. For example, it is not a crime to knowingly be present where marijuana is kept, stored or even grown. This is because the legislature considers heroin use or sale to be so dangerous and destructive that merely being around the drug should be a crime.