Controlled Substances Law in Kentucky

For those of us old enough to remember, we may believe America’s “War on Drugs” began in the mid-1980’s, as the “Just Say No” anti-drug campaign hit schools throughout the country. However, the war officially began nearly two decades before that, when President Richard Nixon made a special address to Congress, telling members that drug abuse in this country was “a serious national threat.”

Following President Nixon’s call to action, in 1970 Congress passed the Controlled Substances Act (CSA), Title II of the Comprehensive Drug Abuse Prevention and Control Act. Many states either already had some form of drug enforcement on the books or followed suit when the CSA was passed in 1970.

Kentucky’s laws on controlled substances are found in Chapter 218A of the Kentucky Revised Statutes, prefaced with the words “The General Assembly hereby finds, determines, and declares that the regulation of controlled substances in this Commonwealth is important and necessary for the preservation of public safety and public health . . .”

Are you facing charges for possession of a controlled substance, you realize how serious these charges are, you know you may be facing jail time or at the least probation, but you are not sure what your first action should be?

The best first step you can take is to talk with a qualified Lexington controlled substance defense attorney like Dan Carman. Dan has helped others in your situation, and he is ready to talk with you today about building the best defense possible for you.

What Are Controlled Substances and How Does Kentucky Classify Them?

KRS 218A.010(6) defines a controlled substance as methamphetamine, or a drug, substance, or immediate precursor (something used in the manufacture of the controlled substance) in Schedules I through V, and includes a controlled substance analogue (something similar to a controlled substance in Schedules I or II).

The schedules used in the statutes divide the drugs into types, depending on the drug’s tendency to cause addiction and whether or not it has any recognized medical benefits. Controlled substances are classified according to these schedules:

  • Schedule I drugs – These substances have a high potential for abuse and have no accepted medical use in the United States. Examples include LSD, marijuana, peyote, and “ecstasy.”
  • Schedule II drugs – These substances have a high potential for abuse and have a currently accepted medical use in the United States (possibly with severe restrictions). Abuse of the substance may lead to severe psychic or physical dependence. Examples of Schedule II drugs include morphine, codeine, and opium. The brand names of some Schedule II drugs are Dilaudid, Demerol, and OxyContin.
  • Schedule III drugs – These substances have less potential for abuse than those in Schedules I and II, and are currently accepted for medical use in this country. Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence. Examples include Vicodin, Marinol, and Tylenol with codeine.
  • Schedule IV drugs – These substances have a low potential for abuse relative to substances in Schedule III, are currently accepted for medical use in treatment in this country, and abuse may lead to limited physical dependence or psychological dependence relative to the substances in Schedule III. Some examples of Schedule IV drugs include Darvon, Xanax, Valium, and Versed.
  • Schedule V drugs – These substances have low potential for abuse relative to the controlled substances in Schedule IV, they have currently accepted medical use in treatment in the United States, and have limited physical or psychological dependence liability relative to the controlled substances in Schedule IV. Drugs categorized as Schedule V controlled substances include Robitussin AC and Phenergan with Codeine—both cough preparations that contain no more than 200 milligrams of codeine per 100 milliliters or per 100 grams.

Penalties for Possession of a Controlled Substance in Kentucky

KASPER is Kentucky’s All Scheduled Prescription Electronic Reporting system. It allows prescription drug use to be quantified for analysis. Kasper data collected between 2006 and 2008 revealed that 96 of Kentucky’s 120 counties saw an increase in the rate for controlled substance prescriptions (hydrocone, oxycodone, Xanax, Valium, and methadone), with 24 of the counties seeing a 20 percent or more increase. As recently as 2010, Kentucky ranked fourth in the nation in the use of prescription drugs.

According to Kentucky State Police records, controlled substance-related arrests rose by 16.7 percent between 2007 and 2008. Most of those arrests were for possession, as opposed to trafficking. Cases in the circuit and district court systems also saw increases between 2007 and 2008 of 4.2 percent and 8.4 percent, respectively.

Penalties for controlled substance possession differ, depending on the substance possessed and the number of times the possessor has been charged. Penalty ranges include:

  • Possession in the first degree – Someone knowingly possessing certain amounts of Schedule I or II substances may be charged with a Class D felony. However, for a first or second offense, the sentence may be presumptive probation or a deferred prosecution program, where the offender is placed on probation and then released following successful completion of the probation conditions. If conditions are not met, the offender will be tried on the Class D charges, which can result in $1,000 to $10,000 in fines and up to three years in prison. For a third (or greater) offense, the offender has no chance at deferred prosecution.
  • Possession in the second degree – Someone knowingly possessing certain amounts of Schedule I or II substances that are not narcotic drugs, or some substances in Schedule III, can be charged with a Class A misdemeanor. If convicted, the penalty may be a fine of $500, up to one year in jail, or both. Second or subsequent arrests may result in sentencing as a Class D felony.
  • Possession in the third degree – Someone knowingly possessing Schedule IV or V substances can be charged with a Class A misdemeanor, which may result in a $500 fine, up to a year in jail, or both. Second or subsequent arrests may result in sentencing as a Class D felony.
  • Persistent felony offender in the first degree – This is someone older than 21 who has two or more previous felony convictions and was older than 18 at the time of the previous conviction, and was arrested less than five years after the sentence was completed or was on probation, parole, or in custody at the time of the latest arrest. If the person is charged with a Class B felony, the prison sentence can be increased to at least 20, and up to 50, years; for a Class C or D felony, the sentence can be at least 10 and up to 20 years.
  • Persistent felony offender in the second degree – This term applies to someone who has one previous felony conviction, where a first degree offender has two or more previous felony convictions. If convicted, an offender in the second degree will be sentenced under the next highest degree of crime from the charged crime. This means that if, for example, the offender was charged with a Class D felony, he will instead be sentenced under the terms of a Class C felony if convicted.

What Steps Should You Take if Arrested for Possession of a Controlled Substance?

Being charged with possession of any controlled substance in Kentucky is a serious matter. It can affect your current and future employment, and will certainly have an economic and emotional impact on both you and your loved ones.

You should consider sitting down with a Kentucky controlled substance defense lawyer like Dan Carman to go over the facts of your case and discuss a defense. Dan is an experienced criminal defense lawyer who is admitted to practice in all Kentucky state courts, the federal courts in both the Eastern and Western Districts of Kentucky, and in the U.S. Sixth Circuit Court of Appeals.

Before entering private practice, Dan served as a law clerk for the Honorable Jennifer B. Coffman, United States District Courts for the Eastern and Western Districts of Kentucky. Prior to the clerkship, he served as a judge advocate in the United States Marine Corps.

Get in touch with Dan today by calling his office at (859) 838-1415 or by filling out his online contact form.