Drug possession charges in SC can be based on actual possession or constructive possession, and the weight of the drugs found determine whether a person is charged with simple possession or a more serious drug offense.
In this article, we will discuss SC law on drug possession charges, including:
- The difference between actual possession and constructive possession,
- Whether a codefendant can “take responsibility for the drugs,”
- The threshold weights for simple possession charges in SC,
- The potential penalties for drug possession charges, and
- Possible defenses to possession charges.
Drug Possession Charges/ Possession of a Controlled Substance in SC
What does “possession” mean? You either had drugs on you or you didn’t, right?
It’s not that simple, though. If the police find you standing there with a bag of weed in your hand, or if the police search your pockets and find a baggie of powder cocaine, and if there are no constitutional violations or other defenses, it could be a simple case for the prosecution.
But, in many cases, people are charged with drug possession even though the drugs were not in their hands or their pockets. Police will charge someone with drug possession under the theory of “constructive possession” when the drugs are found:
- On the floorboard, under the seat, or in the trunk of a vehicle,
- In a home, hotel room, or other living space, or
- On the ground near the area where a person was standing.
Any time you see the word “constructive” in the law, it means “fake.”
There’s actual possession, and then there’s fake possession – where the police think the drugs probably belonged to the person even though they weren’t actually in the person’s possession, so we will pretend that the person possessed the drugs…
In these cases, the prosecutor must prove that you had the right to “dominion and control” over the drugs. They must prove that you:
- Knew that the drugs were there, and
- Had the right to control the disposition of the drugs.
In short, they must prove that the drugs belong to you…
Can I Be Charged with Drug Possession if My Codefendant Takes Responsibility for the Drugs?
Can your codefendant say the drugs were theirs and get your case dismissed?
More than one person can be charged and convicted of possession of the same drugs, and often are. You may have a constructive possession defense, however, if the drugs were found in someone else’s car or on someone else’s property, if you didn’t know they were there, and if the drugs did not belong to you.
As a practical matter, charges against codefendants who were “just there” might be dismissed by the prosecutor once the “target” has pled guilty. Depending on the statements made by you and your codefendants, however, and the evidence of your knowledge, dominion, and control, the prosecutor can still take your case to trial.
Types of Drug Possession Charges in SC and Threshold Weights
SC law has “threshold weights” that create an inference that a person possessed the drug with the intent to distribute. In most cases, if the drugs are above that weight, the person is charged with PWID, and if the drugs are below that weight, the person is charged with simple possession.
The threshold weights for the most common drug offenses in SC include:
- Simple possession of Marijuana – 28 grams (one ounce)
- Possession of Hashish – ten grams
- Possession of Powder Cocaine – one gram
- Possession of Crack Cocaine or Cocaine Base – one gram
- Possession of Meth – one gram
- Possession of Heroin – two grains (a much smaller unit than a gram)
- Possession of LSD – 50 micrograms
- Possession of MDMA/ Ecstasy – 15 dosage units
Penalties for Drug Possession in SC
The potential penalties for drug possession charges in SC can be found in SC Code § 44-53-375 (for crack cocaine/cocaine base or meth) and SC Code § 44-53-370 (for marijuana, powder cocaine, heroin, and other controlled substances):
|Possession Charges||Potential Penalties|
|Possession of Marijuana 1st Offense||30 days|
|Possession of Marijuana 2nd Offense||One year|
|Possession of Hashish 1st Offense||30 days|
|Possession of Hashish 2nd Offense||One year|
|Possession of Powder Cocaine 1st Offense||Three years|
|Possession of Powder Cocaine 2nd Offense||Five years|
|Possession of Powder Cocaine 3rd Offense||Ten years|
|Possession of Cocaine Base/ Crack Cocaine 1st Offense||Three years|
|Possession of Cocaine Base/ Crack Cocaine 2nd Offense||Five years|
|Possession of Cocaine Base/ Crack Cocaine 3rd Offense||Ten years|
|Possession of Meth 1st Offense||Three years|
|Possession of Meth 2nd Offense||Five years|
|Possession of Meth 3rd Offense||Ten years|
|Possession of Heroin 1st Offense||Two years|
|Possession of Heroin 2nd Offense||Five years|
|Possession of Heroin 3rd Offense||Five years (increased potential fine)|
|Possession of LSD 1st Offense||Two years|
|Possession of LSD 2nd Offense||Five years|
|Possession of LSD 3rd Offense||Five years (increased potential fine)|
|Possession of MDMA/ Ecstasy/ Molly 1st Offense||Six months|
|Possession of MDMA/ Ecstasy/ Molly 2nd Offense||One year|
|Possession of Non-Narcotic Prescription Drugs 1st Offense||Six months|
|Possession of Non-Narcotic Prescription Drugs 2nd Offense||One year|
Potential Defenses, Conditional Discharges, and Pretrial Diversion Programs
The potential defenses to drug possession charges in SC vary based on the facts of each case, but one common defense is the exclusion of the drugs at trial because of constitutional violations.
For example, the evidence may be suppressed (and your case may get dismissed) if the police:
- Did not have probable cause when they searched your vehicle,
- Did not get a search warrant when they searched your home,
- Got a search warrant that was not based on probable cause,
- Lied to the magistrate about the facts when they asked for the search warrant, or
- Left out key information when they asked the magistrate for a search warrant.
Several pretrial diversion programs are available to first-time offenders charged with drug possession, including:
Questions About Drug Possession Charges in SC?
Attorney Johnny Gardner has over twenty years of trial experience defending misdemeanors and felonies in SC courtrooms, including drug crimes like drug possession, possession with intent to distribute, drug distribution, and drug trafficking.