The Richmond Register

February 12, 2014

Drug possession charges based on type not quantity

By Seth Littrell
Register News Writer


When a story about a Berea woman charged with felony drug possession because police said she had half a Percocet ran in Wednesday’s Richmond Register, the paper received several reactions.

Some (including staff members) questioned how possession of half a pill could merit a felony charge that could land someone in prison for three years.

However, drug possession charges are made based on the makeup of a drug, not its quantity, according to several sources.

U.S. Drug Enforcement Administration’s website explains that controlled substances are broken into five categories, or schedules. They rank substances based on their medical uses and potential for abuse.

Schedule 1 drugs have no accepted medical use within the country, have a high potential for abuse and are considered the most dangerous. Schedule 5 drugs, such as Robitussin AC and other cough syrups, on the other hand, present the smallest risk and are typically used to treat common ailments.

The first two schedules are largely made up of narcotics, strong pain relievers which cause drowsiness and impaired judgement. Percocet, which includes oxycodone in its mix, is also considered a narcotic.

Regardless of which of the first two schedules a narcotic falls into, its unlawful possession is considered a class D felony under Kentucky law.

Additionally, the amount of a drug someone has on his or her person does not factor into a possession charge, according to Madison County Commonwealth’s Attorney David Smith.

“If the general assembly wanted anyone who has less than three pills on them to get a misdemeanor charge, they’d have written it in the law,” Smith said. “I’m reluctant to write into the law something that isn’t there.”

Rather, Smith said prosecutors, defense attorneys and judges utilize diversions and deferments to help suspects avoid jail time if they don’t have a criminal record. Deferments allow the defendant to avoid jail without a guilty plea, as long as they can meet requirements set forth by a judge. Diversion requires a guilty plea from the suspect, but also removes prison time. Smith said those options are used to avoid putting new people into the prison system.

“What we try to achieve is to be consistent and fair,” he said.

While some possession cases are amended or dismissed, there isn’t a set standard for changes based on quantity, he added. Instead, each case is looked at individually.

While the quantity of drugs a person has on them doesn’t factor into possession charges, it can be a factor in trafficking charges.

According to state law, anyone found with more than 10 dosage units of a narcotic ― four grams of cocaine or two grams of heroin or methamphetamine ― can be charged with trafficking in a controlled substance, also a felony. Qualifiers for other drugs are listed as well, but cocaine, heroin and methamphetamine are more commonly found in Madison County, according to local law enforcement officials.

Seth Littrell can be reached at or 624-6623.