Is Drug Possession a Felony? Penalties by State (2026)
Simple drug possession can be a misdemeanor or a felony depending on the state, the drug, the amount, and your prior record — here is the 50-state + DC breakdown.
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Quick Answer
The short answer is: it depends. Simple drug possession — meaning having a controlled substance for personal use, not for sale — can be charged as either a misdemeanor or a felony, and which one you face depends on four things: (1) the state you are in, (2) the drug and its federal schedule, (3) the amount in your possession, and (4) your prior criminal record. There is no single national rule for simple possession; the law varies dramatically from state to state, and the same bag of cocaine that is a misdemeanor in California can be a felony in Florida or Texas.
Marijuana is the clearest example of state variation. As of 2026, 24 states plus DC have legalized recreational marijuana for adults, meaning possession of small personal amounts is legal (not criminal at all) under state law. Roughly another 7-8 states have decriminalized small amounts (a civil fine, not a crime, or a low-level misdemeanor). In the remaining states, marijuana possession remains a criminal misdemeanor or, for larger amounts or repeat offenses, a felony. For harder drugs — heroin, cocaine, methamphetamine, fentanyl — the picture is much harsher. Possession of these Schedule I or II substances is a felony in most states on a first offense, though a growing number of states (California, Oregon post-reform, New York, Connecticut, Maryland, and others) treat first-offense simple possession of small amounts of any drug as a misdemeanor.
Amount is the second critical factor. Every state draws a line between "simple possession" (personal use) and "possession with intent to deliver or distribute." Cross that amount threshold and the charge jumps from a misdemeanor or low-level felony to a serious trafficking/distribution felony — in every state, possession with intent to deliver is a felony, often carrying years to decades in prison. The thresholds vary (for example, 1 gram of heroin, 28 grams of cocaine, 4 grams of meth, etc.), and prosecutors can also infer intent from packaging, scales, cash, or large quantities even below a statutory threshold.
Prior convictions matter in many states. Several states make a repeat simple-possession conviction a felony even if the underlying possession would otherwise be a misdemeanor — Oklahoma (a fourth offense within 10 years), North Carolina (a second offense — and Schedule I or cocaine/meth/fentanyl possession is a felony on any offense), Utah (a third conviction within 7 years), and Iowa (a third offense). Others, like the federal system (21 USC 844), escalate penalties with each prior: a first federal simple possession is a misdemeanor (up to 1 year), but one prior raises exposure to 15 days-2 years, and two or more priors raise it to 90 days-3 years (a felony under 18 USC 3559 because the maximum exceeds 1 year).
Recent reforms have shifted the landscape. Oregon's Measure 110 (2021) famously decriminalized small amounts of all drugs, making possession a non-criminal violation with a $100 fine and a health assessment — but in 2024 the legislature (HB 4002) re-criminalized personal possession (a non-criminal violation under 2 grams of heroin/cocaine/meth, a class A misdemeanor at 2 grams or more), reflecting how quickly this area changes. California's Proposition 47 (2014) reduced most simple possession from a felony to a misdemeanor. Minnesota (2023), Colorado (2013), and several others have similarly downgraded first-offense simple possession. At the same time, fentanyl's rise has pushed some states to increase penalties.
Collateral consequences make the misdemeanor/felony line especially important. A felony drug conviction can trigger loss of professional licenses, federal student aid ineligibility, public housing denial, firearm possession bans, immigration consequences (including deportation for non-citizens), and enhanced sentences for future offenses. A misdemeanor still carries real consequences (jail, fines, probation, a criminal record) but is easier to expunge and less damaging long-term.
Diversion and drug court programs exist in virtually every state and can allow first-time offenders to avoid a conviction entirely by completing treatment. If you are charged, ask your public defender or lawyer about pretrial diversion, deferred adjudication, drug court, or first-offender programs — these can reduce a felony to a dismissal and are often the best outcome short of acquittal. This page is informational only, not legal advice; the statutes and penalties below change often, so confirm the current version with your state legislature or a licensed attorney.
Felony vs Misdemeanor: Side-by-Side Comparison
| Factor | Felony | Misdemeanor |
|---|---|---|
| Drug type / federal schedule | Heroin, cocaine, methamphetamine, fentanyl, and other Schedule I/II substances are treated most seriously. In Florida, Texas, Georgia, South Carolina, and many other states, possession of any amount of these drugs is a felony on a first offense. Marijuana is a Schedule I federally but is treated far more leniently by most states. | Lower-schedule drugs (Schedule III/IV/V such as anabolic steroids, benzodiazepines, codeine combinations) and marijuana in most states are misdemeanors or lower. In legalization states, small personal marijuana possession is not a crime at all. |
| Amount (personal use vs. intent to deliver) | Possession of amounts above a state's personal-use threshold, OR any amount combined with packaging, scales, cash, or other indicators of sale, is charged as possession with intent to deliver — a felony in every state, often carrying years to decades. | Possession of a small amount clearly for personal use, with no indicia of sale, is "simple possession" and is the most likely to be a misdemeanor or low-level offense (depending on state and drug). |
| Prior drug convictions | Several states make a repeat simple-possession conviction a felony even when the first offense is a misdemeanor: Oklahoma (4th offense within 10 years), North Carolina (2nd offense), Utah (3rd conviction within 7 years), and Iowa (3rd offense). Federal law (21 USC 844) makes a second federal simple-possession offense carry up to 2 years and a third up to 3 years — felonies under 18 USC 3559. | A first offense with no prior drug convictions is most likely to qualify for misdemeanor treatment, diversion, or first-offender probation in states that offer it. |
| State legalization / decriminalization status | In fully illegal states (Idaho, Kansas, South Carolina, etc.), marijuana possession can itself be a misdemeanor or felony, and other drug possession is almost always a felony. | In 24 states + DC with legal recreational marijuana, personal possession of marijuana (typically 1-3 ounces) is legal and not criminal. In decriminalized states, small marijuana possession is a civil infraction or non-criminal violation. Oregon Measure 110 decriminalized all small drug possession in 2021 (re-criminalized in 2024: a violation under 2 grams, a class A misdemeanor at 2 grams or more). |
| Federal vs. state prosecution | Under 21 USC 844, federal simple possession is a misdemeanor on a first offense (up to 1 year, $1,000 minimum fine) but becomes a felony with prior drug convictions (one prior: 15 days-2 years; two+ priors: 90 days-3 years). Federal trafficking thresholds under 21 USC 841 carry much heavier mandatory minimums (e.g., 5g+ cocaine base = 5 years). | Most simple-possession cases are prosecuted in state court under state law. Federal possession charges are rare unless you are on federal property, in a federal building, or caught by federal agents. Federal marijuana possession has also been pardoned for U.S. citizens/lawful residents under 2022-2023 Biden proclamations (for federal simple possession offenses). |
| Prison exposure | Felony drug possession ranges widely: from a low-level "state jail felony" in Texas (180 days-2 years for <1g of a Penalty Group 1 drug) up to 5 years in Florida (3rd-degree felony), up to 10 years in Louisiana (heroin, 2-28 grams), and weight-tiered sentences of up to 20 years in Mississippi for larger first-offense possession. Possession with intent can carry decades. | Misdemeanor possession typically carries up to 1 year in jail (some states less — e.g., 6 months in Maine, 180 days in DC, 11m29d in Tennessee). Many first-time misdemeanor offenders get probation, fines, or diversion instead of jail. |
| Diversion / first-offender programs | Even felony possession charges may be eligible for deferred adjudication, drug court, or first-offender probation that results in dismissal if completed — common in Virginia, Georgia (first-offender statute), Texas (deferred adjudication), and others. | Most states offer pretrial diversion, drug court, or conditional discharge for first-time misdemeanor possession. Successful completion often means no conviction on your record. Always ask your lawyer about this — it is frequently the best outcome available. |
State-by-State: How Each State Classifies It
51 jurisdictions. Start with the exact statute and subsection on the charging document. The incident date, alleged facts and applicable enhancements can change the classification or sentence.
| State | Statute | Classification | Felony class | Penalty summary | Key note |
|---|---|---|---|---|---|
| Alabama | Ala. Code § 13A-12-212 (possession of a controlled substance); § 13A-12-213 (possession of marijuana); § 13A-12-204 (possession with intent to distribute) | Possession of any controlled substance other than marijuana is a Class C felony. Possession of marijuana for personal use (first offense, under 2.2 lbs) is a Class A misdemeanor; a second or subsequent marijuana possession is a felony. Possession with intent to distribute is a Class B or A felony. | Class C felony (simple possession of a controlled substance); Class B felony (possession with intent) | Class C felony: 1 to 10 years; Class A misdemeanor (marijuana first offense): up to 1 year in jail; possession with intent: 2 to 20 years | Marijuana is fully illegal (no legal recreational or medical program beyond a 2014 CBD-only law for seizure disorders). Alabama is one of the harshest states — any possession of a non-marijuana controlled substance is a felony on a first offense. Diversion and drug court exist but are limited. |
| Alaska | AS § 11.71.060 (misconduct involving controlled substance in the 6th degree — possession); AS § 11.71.050 (5th degree); AS § 11.71.030 (possession with intent to deliver) | Simple possession of small amounts of most drugs is a Class A misdemeanor (6th degree). Possession of larger amounts or of certain Schedule I/II drugs (heroin, cocaine, meth) can be charged as a Class C felony (5th degree). Marijuana is legal recreational for adults 21+. | Class C felony (5th degree); Class A misdemeanor (6th degree) | Class A misdemeanor: up to 1 year; Class C felony: up to 5 years; possession with intent (higher degrees): up to 99 years for large-scale delivery | Marijuana legalized recreational via 2014 ballot measure (adults 21+ may possess up to 1 oz). Alaska treats small-scale simple possession as a misdemeanor but escalates to felony for larger amounts or certain drugs. Diversion available for first offenders. |
| Arizona | ARS § 13-3408(A)(1) (possession of dangerous drugs); § 13-3407(A)(1) (possession of narcotic drugs); § 13-3405(A)(1) (possession of marijuana); § 13-3407.01 (threshold amounts) | Possession of dangerous drugs (meth, amphetamine, etc.) is a Class 4 felony. Possession of narcotic drugs (heroin, cocaine) is a Class 4 felony. Possession of marijuana is a Class 6 felony for 1 oz to 2 lbs (up to 1 oz is legal for adults 21+ under Prop 207), but Prop 200 (1996) requires probation and treatment instead of prison for first-time personal-use offenders. Possession at or above threshold amounts (9g meth, 9g cocaine, 1g heroin — ARS 13-3401(36)) is charged as possession for sale, a Class 2 felony with mandatory prison (about 3-12.5 years on a first offense). | Class 4 felony (dangerous/narcotic drugs); Class 6 felony (marijuana 1 oz-2 lbs); Class 2 felony (possession for sale at/above threshold amounts) | Class 4 felony: 1 to 3.75 years (presumptive 2.5 years); Class 6 felony: 4 months to 2 years; possession for sale (threshold amounts): Class 2 felony, mandatory prison about 3-12.5 years first offense | Marijuana legal recreational (Prop 207, 2020) for adults 21+, up to 1 oz. Medical marijuana legal since 2010. Despite legalization, Arizona is felony-heavy for hard drugs — any possession of meth/heroin/cocaine is a Class 4 felony. First-time personal-use offenders get Prop 200 probation/treatment. |
| Arkansas | Ark. Code § 5-64-403 (possession of controlled substance); § 5-64-401 (possession with intent to deliver); § 5-64-406 (marijuana possession) | Possession of Schedule I or II controlled substance is a Class D felony (or Class Y for larger amounts). Possession of Schedule III/IV/V is a Class A or B misdemeanor. Possession of marijuana under 4 oz is a Class A misdemeanor; 4 oz to 10 lbs is a Class D felony; over 10 lbs is a Class C or Y felony. | Class D felony (Schedule I/II possession); Class A misdemeanor (Schedule III/IV; marijuana under 4 oz) | Class D felony: up to 6 years; Class A misdemeanor: up to 1 year; Class Y felony (intent/large amount): 10 to 40 years or life | Medical marijuana legal (2016 amendment). Recreational not legal. First-offense possession of Schedule I/II is a Class D felony (no misdemeanor option for hard drugs). Drug court and Act 343 diversion available for first offenders. |
| California | Cal. Health & Safety Code § 11350 (possession of controlled substance); § 11377 (possession of meth/amphetamine); § 11351 (possession for sale); § 11357 (marijuana) | Under Proposition 47 (2014), simple possession of most controlled substances (including heroin, cocaine, meth) is a misdemeanor, with exceptions for registered sex offenders and those with prior serious/violent felonies (who can be charged with a felony). Possession with intent to sell is a felony (§ 11351/11378). Marijuana is legal recreational (2016, Prop 64) for adults 21+. | Misdemeanor (simple possession post-Prop 47); felony (possession for sale; or prior serious/violent felony exceptions) | Misdemeanor: up to 1 year in county jail; possession for sale (felony): 16 months to 3 years (more for larger amounts) | California is one of the most lenient states — Prop 47 (2014) made most simple possession a misdemeanor. Possession for sale remains a serious felony. Drug diversion (PC 1000, Prop 36, drug court) widely available. Marijuana recreational legal since 2016. |
| Colorado | C.R.S. § 18-18-403.5 (unlawful possession of a controlled substance); § 18-18-405 (possession with intent to manufacture/dispense); § 18-18-406 (marijuana) | Possession of less than 4 grams of a Schedule I/II substance is a level 1 drug misdemeanor. Possession of 4 grams or more, or of any amount of certain drugs, is a level 4 drug felony. Possession with intent is a level 1-3 drug felony. Marijuana is legal recreational (2012, Amendment 64). | Level 1 drug misdemeanor (under 4g); Level 4 drug felony (4g+ or certain drugs); Level 1-3 drug felony (intent) | Level 1 drug misdemeanor: up to 18 months; Level 4 drug felony: 6-12 months to 2 years (probation common); Level 1 drug felony (intent, large amount): 8-32 years | Colorado reformed drug sentencing in 2013 — small personal possession is a misdemeanor. Marijuana legal recreational (2012). Diversion and drug court widely available. Felony drug possession can still apply for amounts over 4g or certain drugs. |
| Connecticut | C.G.S. § 21a-279(a) (possession of any controlled substance except cannabis); § 21a-279(b) (school-zone possession); § 21a-279 (marijuana provisions); § 21a-278 (possession with intent to sell) | Possession of any controlled substance other than cannabis — narcotics, hallucinogens, all of it (§ 21a-279(a)) — is a class A misdemeanor (up to 1 year and $2,000) regardless of the offense count; a second offense can be suspended for a treatment program if the person is drug-dependent, and a subsequent offense can trigger a persistent-offender felony enhancement. Cannabis is legal for adults 21+ (2021); a small amount possessed by someone under 21 is a civil infraction. | Class A misdemeanor (any non-cannabis controlled substance); felony (persistent-offender enhancement; PWID); infraction/legal (cannabis) | Class A misdemeanor: up to 1 year and $2,000; PWID of narcotics (§ 21a-278(a)): 5-20 years first offense (longer on a subsequent); PWID of other controlled substances (§ 21a-278(b)): up to 7 years and $25,000 first offense | Cannabis legal recreational (2021, SB 1201). Connecticut's 2015 reform lowered simple possession of all non-cannabis drugs to a class A misdemeanor; only possession with intent to sell carries felony exposure (school-zone cases add mandatory probation and community service). Drug court and pretrial diversion (C.G.S. § 54-56e) available. |
| Delaware | 16 Del. Code § 4763 (possession of controlled substance); § 4753 (drug dealing/aggravated possession); § 4764 (marijuana) | Simple possession of a controlled substance (other than marijuana) is a class B misdemeanor (class A with an aggravating factor); aggravated possession (§ 4753) is a class C felony. Marijuana is legal for adults 21+ (up to 1 oz); recreational legalization passed in 2023 and retail sales began August 2025. | Class B misdemeanor (simple possession); class C felony (aggravated possession/drug dealing); legal (marijuana up to 1 oz for adults 21+) | Class B misdemeanor (class A with an aggravating factor); aggravated possession/dealing: class C felony; marijuana legal up to 1 oz for adults 21+ | Marijuana recreational legalized (2023), possession legal up to 1 oz, retail sales began August 2025. Drug diversion (Title 16 drug court) available for first offenders. Delaware treats simple possession as a misdemeanor; only aggravated possession or dealing is a felony. |
| District of Columbia | DC Code § 48-904.01(a) (possession of controlled substance); § 48-904.01(b) (marijuana); § 48-904.01 (penalties) | Simple possession of a controlled substance is a misdemeanor — up to 180 days and up to a $1,000 fine, with a second or subsequent offense reaching up to 360 days. Possession with intent to distribute is a felony. Marijuana is legal (Initiative 71, 2014) for adults 21+ to possess up to 2 oz. | Misdemeanor (simple possession, first and subsequent); felony (possession with intent to distribute) | Simple possession: up to 180 days and $1,000 fine (up to 360 days on a second offense); PWID of a Schedule I/II narcotic: up to 30 years and $500,000 | DC is relatively lenient — simple possession is a misdemeanor on first offense. Marijuana legal recreational (2014) but no legal sales framework. Diversion and drug court available. DC defelonized simple possession of most drugs years ago. |
| Florida | Fla. Stat. § 893.13(6)(a) (possession of controlled substance); § 893.13(6)(b) (marijuana under 20g); § 893.13(1)(a)/(2)(a) (possession with intent to sell) | Possession of any controlled substance in Schedules I-IV (other than marijuana under 20g) is a third-degree felony. Possession of under 20 grams of marijuana is a first-degree misdemeanor. Possession with intent to sell is a second- or first-degree felony depending on amount. | Third-degree felony (most controlled substances); first-degree misdemeanor (marijuana under 20g) | Third-degree felony: up to 5 years and $5,000; first-degree misdemeanor: up to 1 year; first-degree felony (intent, large amount): up to 30 years | Florida is one of the harshest states — simple possession of any amount of cocaine, heroin, meth, or pills is a third-degree felony on a first offense. Only small marijuana (under 20g) is a misdemeanor. Medical marijuana legal (2016, Amendment 2). Drug court and pretrial diversion widely available for first offenders. |
| Georgia | OCGA § 16-13-30(a) (possession or possession with intent); § 16-13-30(b) (marijuana under 1 oz — misdemeanor); § 16-13-2 (conditional discharge, first offense); § 42-8-60 (First Offender Act) | Possession of a Schedule I or II narcotic is a felony (2-15 years). Possession of other controlled substances is a felony (1-3 years). Possession of marijuana under 1 oz is a misdemeanor (up to 1 year). Possession with intent to distribute is a felony with harsher penalties. | Felony (Schedule I/II narcotics: 2-15 years; other controlled substances: 1-3 years); misdemeanor (marijuana under 1 oz) | Felony possession: 1 to 15 years; misdemeanor marijuana: up to 1 year; possession with intent: 5 to 30+ years (trafficking amounts) | Georgia is harsh — simple possession of hard drugs is a felony with significant prison exposure. Georgia's First Offender Act (OCGA § 42-8-60) allows first offenders to avoid a conviction if probation is completed, and § 16-13-2 provides conditional discharge for a first drug possession offense. Medical marijuana limited to low-THC oil (2015). No recreational marijuana. |
| Hawaii | HRS § 712-1243 (promotion of dangerous drug in 3rd degree); § 712-1240 (promotion of dangerous drug); § 712-1247 (marijuana); § 329-43 (possession) | Possession of any amount of a dangerous drug — even residue — is a class C felony (HRS § 712-1243). Larger amounts or possession with intent can be a class B or class A felony. Marijuana possession of 3 grams or less is decriminalized (civil fine $130). Medical marijuana legal since 2000. | Class C felony (any amount of any dangerous drug); class B/A felony (promotion in the 2nd/1st degree); decriminalized (marijuana under 3g) | Class C felony: up to 5 years; class B felony: up to 10 years; class A felony (promotion 1st degree): up to 20 years; marijuana under 3g: $130 fine | Hawaii decriminalized marijuana (2019, under 3g = $130 fine). Medical marijuana legal (2000). No recreational marijuana yet. Hawaii treats possession of any amount of a dangerous drug as a class C felony — there is no misdemeanor tier for hard drugs. Diversion and HOPE probation available. |
| Idaho | Idaho Code § 37-2732 (possession of controlled substance); § 37-2732C (marijuana); § 37-2732B (possession with intent to deliver) | Possession of a Schedule I narcotic or any Schedule II drug is a felony (up to 7 years and $15,000). LSD possession is a felony (up to 3 years and $5,000). Possession of a non-narcotic Schedule I drug (except LSD) or any Schedule III/IV/V substance is a misdemeanor (up to 1 year and $1,000). Marijuana under 3 oz is a misdemeanor (up to 1 year); over 3 oz is a felony (up to 5 years and $10,000). | Felony (Schedule I narcotic/Schedule II; LSD; marijuana over 3 oz); misdemeanor (marijuana under 3 oz; non-narcotic Schedule I except LSD; Schedule III/IV/V) | Schedule I narcotic/Schedule II felony: up to 7 years and $15,000; LSD: up to 3 years and $5,000; marijuana felony (over 3 oz): up to 5 years and $10,000; misdemeanors: up to 1 year and $1,000; intent to deliver: up to life | Idaho is one of the harshest states — no medical or recreational marijuana, and possession of Schedule I narcotics, Schedule II drugs, or LSD is a felony on a first offense (only non-narcotic Schedule I and Schedule III-V substances are misdemeanors). Even marijuana over 3 oz is a felony. Drug court (Idaho Code § 19-2604f) available for first offenders. |
| Illinois | 720 ILCS 570/402(c) (possession of controlled substance); 720 ILCS 550/4 (Cannabis Control Act); 720 ILCS 570/401 (possession with intent to deliver) | Possession of controlled substances is generally a class 4 felony (1-3 years) for amounts under statutory thresholds. Possession with intent (amount-based) ranges from class 1 felony to class X felony. Marijuana is legal recreational (2019, Cannabis Regulation and Tax Act). | Class 4 felony (most simple possession under threshold amounts); class X felony (large amount intent to deliver) | Class 4 felony: 1 to 3 years; class 1 felony: 4 to 15 years; class X felony (intent, large amount): 6 to 30+ years | Marijuana legal recreational (2019). Illinois offers "1410 probation" (720 ILCS 570/410) for first offenders — dismissal upon completion of treatment. Despite this, simple possession of hard drugs is technically a class 4 felony, but first offenders usually get probation/treatment. |
| Indiana | IC § 35-48-4-6 (possession of cocaine/narcotics/Schedule I-II, incl. marijuana under 30g); § 35-48-4-6.1 (methamphetamine); § 35-48-4-7 (other Schedule I-IV); § 35-48-4-1 (possession with intent) | Possession of cocaine, a narcotic, or any Schedule I/II substance (35-48-4-6), or of methamphetamine (35-48-4-6.1), is a level 6 felony for any amount under 5 grams; 5-10g is a level 5 felony, 10-28g a level 4, and 28g+ a level 3. Possession of other Schedule I-IV substances (35-48-4-7) is a class A misdemeanor. Possession of marijuana under 30g is a class B misdemeanor (up to 180 days); with a prior it is a class A misdemeanor. | Level 6 felony (cocaine/narcotics/Schedule I-II or meth, under 5g); level 5 (5-10g); level 4 (10-28g); level 3 (28g+); class A misdemeanor (other Schedule I-IV); class B misdemeanor (marijuana under 30g) | Class A misdemeanor: up to 1 year; level 6 felony: 6 months to 2.5 years; level 5: 1-6 years; level 4: 2-12 years; level 3: 3-16 years; possession with intent: level 5 to level 1 depending on amount | Indiana weight-tiers cocaine, narcotics, and meth — any amount, even under a gram, is a level 6 felony. Marijuana under 30g stays a misdemeanor. No medical or recreational marijuana (CBD-only law 2017 for seizures). Drug court and deferral (IC § 35-48-4-12) available for first offenders. |
| Iowa | Iowa Code § 124.401(5) (possession of controlled substance, including marijuana tiers); § 124.401(1) (possession with intent to deliver) | First offense possession of a small amount of a controlled substance is a serious misdemeanor (up to 1 year); second offense is an aggravated misdemeanor; third or subsequent is a class D felony. Possession with intent is a class C or B felony. Marijuana possession (50kg or less) carries a lighter ladder: a simple misdemeanor on a first offense (up to 6 months and $1,000), escalating by conviction count. | Class D felony (third offense possession); serious misdemeanor (first offense small amount) | Serious misdemeanor: up to 1 year; class D felony: up to 5 years; class C felony (intent): up to 10 years; class B felony (intent, large): up to 25 years | Iowa escalates with prior convictions — third offense simple possession is a felony. Medical marijuana limited (CBD, 2014). No recreational marijuana. Diversion available (Iowa Code § 124.502 deferred judgment). |
| Kansas | K.S.A. § 65-4160 (possession of controlled substance); § 65-4101 et seq (Uniform Controlled Substances Act); § 65-4160(a) (severity levels) | Possession of a Schedule I/II controlled substance is a severity level 5 drug felony (about 10-13 months). Possession of marijuana (first offense, under 450g) is a class B nonperson misdemeanor (up to 6 months); with a prior it is a class A misdemeanor. Possession with intent is a higher-level felony. | Severity level 5 drug felony (Schedule I/II possession); class B misdemeanor (marijuana first offense under 450g) | Severity level 5 drug felony: ~10-13 months (presumptive probation for first offense); class B misdemeanor: up to 6 months; intent to deliver: up to 204+ months | Kansas is felony-heavy for hard drugs — simple possession of Schedule I/II is a felony even on first offense, though probation is presumptive. No medical or recreational marijuana (CBD-only law 2018). Drug court available for first offenders. |
| Kentucky | KRS § 218A.1415 (possession in first degree — Schedule I/II narcotics, meth, LSD, PCP); § 218A.1416 (possession in second degree — Schedule III/IV); § 218A.1422 (marijuana) | Possession of a Schedule I/II narcotic, methamphetamine, LSD, PCP, GHB, or flunitrazepam (218A.1415) is a class D felony with a maximum sentence of 3 years, with presumptive probation or deferred prosecution (218A.14151) for a first or second offense. Possession of Schedule III/IV (218A.1416) is a class A misdemeanor; Schedule V a class B misdemeanor. Possession of marijuana (218A.1422) is a class B misdemeanor (up to 45 days). Possession with intent is prosecuted as trafficking, a felony scaled by drug and amount. | Class D felony (Schedule I/II narcotics, meth, LSD, PCP, GHB, flunitrazepam); class A misdemeanor (Schedule III/IV); class B misdemeanor (marijuana) | Class D felony: up to 3 years (probation presumed for first/second offense); class A misdemeanor: up to 1 year; class B misdemeanor: up to 45 days (marijuana); trafficking (intent): felony scaled by drug and amount | Medical marijuana legalized (2023, effective 2025). No recreational marijuana. Kentucky makes first-offense hard-drug possession a felony, but the law presumes probation and allows deferred prosecution (218A.14151) for first and second offenses, so prison is rare for simple possession. Pretrial diversion available for first offenders. |
| Louisiana | LA R.S. 40:966 (possession of Schedule I, including heroin and marijuana); 40:967 (Schedule II); 40:968 (Schedule III); 40:966(A)(1)/40:967(A)(1) (possession with intent) | Possession of heroin is a felony even on a first offense: 2-4 years under 2 grams, 2-10 years (and up to $5,000) for 2-28 grams. Possession of cocaine under 2 grams carries 1-5 years. Possession of marijuana under 14 grams is decriminalized ($100 fine, no jail, 2021 reform). Possession of marijuana over 14g is a misdemeanor or felony depending on amount. Possession with intent is a felony with harsh penalties. | Felony (Schedule I/II hard drugs; marijuana over 14g in some cases); civil violation (marijuana under 14g) | Heroin under 2g: 2-4 years; heroin 2-28g: 2-10 years and up to $5,000; cocaine under 2g: 1-5 years; marijuana under 14g: $100 fine; intent to distribute: up to 30+ years | Louisiana decriminalized marijuana under 14g (2021, $100 fine). Medical marijuana legal (2015, expanded 2022). Louisiana is harsh for hard drugs — heroin possession is a felony with prison time even on a first offense. Drug court available. |
| Maine | 17-A MRS § 1107-A (unlawful possession of scheduled drugs); § 1106-A (trafficking in scheduled drugs); 28-B MRS (marijuana adult use) | Possession of a small amount of a Schedule W drug (heroin, cocaine, meth, oxycodone, fentanyl powder, etc.) is a class D crime (up to 1 year). More than 200mg of heroin or fentanyl powder, 2g of cocaine, or 200mg of oxycodone/meth — or any Schedule W amount with a prior drug conviction — is a class C crime (up to 5 years); over 14g of cocaine or meth with a prior drug conviction is a class B crime (up to 10 years). Marijuana is legal recreational (2016). | Class D crime (small Schedule W amounts; Schedule X); class C crime (larger amounts or any prior drug conviction); class B crime (14g+ cocaine/meth with a prior); class E crime (Schedule Y/Z) | Class D crime: up to 1 year; class C crime: up to 5 years; class B crime (14g+ with a prior): up to 10 years | Maine is among the more lenient states — even hard-drug possession of small amounts is a misdemeanor-level class D crime, though amounts above 200mg/2g or any prior drug conviction make it a felony. Marijuana legal recreational (2016). Drug court and deferred disposition available for first offenders. |
| Maryland | Md. Crim. Law § 5-101 et seq.; § 5-601 (possession of controlled substance/cannabis); § 5-602 (distributing or possessing with intent to distribute); § 5-601 (cannabis provisions) | Simple possession of a controlled substance (other than cannabis) is a misdemeanor: up to 1 year and $5,000 for a first offense, up to 18 months for a second or third, and up to 2 years for a fourth or subsequent. Possession with intent to distribute is a felony. Cannabis is legal for adults 21+ (2023). | Misdemeanor (simple possession, any offense count); felony (possession with intent to distribute) | Misdemeanor: up to 1 year and $5,000 (first), 18 months (second/third), 2 years (fourth+); possession with intent to distribute: up to 20+ years (felony) | Maryland is lenient — simple possession of any drug (including heroin, cocaine) is a misdemeanor no matter the offense count. Only possession with intent to distribute is a felony. Cannabis legal for adults 21+ (2023, possession up to 1.5 oz legal). Diversion available. |
| Massachusetts | MGL c. 94C § 34 (possession of controlled substance); § 32A-32C (possession with intent); § 32H (marijuana decriminalization) | Possession of class A substances (heroin) is up to 2 years (misdemeanor in MA, as it is punishable in the house of correction). Possession of class B (cocaine, meth) is up to 1 year. Possession with intent to distribute is a felony. Marijuana is legal recreational (2016) and decriminalized since 2008. | Misdemeanor (simple possession of small amounts); felony (possession with intent to distribute) | Class A possession: up to 2 years (house of correction); class B: up to 1 year; possession with intent (felony): up to 10+ years in state prison | Massachusetts is lenient — simple possession is a misdemeanor (served in house of correction). Possession with intent is a felony. Marijuana legal recreational (2016). Drug court and § 94C § 34 first-offender diversion available. |
| Michigan | MCL § 333.7403(2)(a) (possession of controlled substance); § 333.7401 (possession with intent to deliver); § 333.7405 (marijuana) | Possession of a controlled substance is a felony, with the degree based on amount and drug type. Possession of <25g cocaine/heroin is a felony (up to 4 years); larger amounts carry more. Marijuana is legal recreational (2018, Proposal 1). Possession with intent is a higher-level felony. | Felony (varies by amount and drug); legal (marijuana under 2.5 oz personal) | Possession <25g cocaine/heroin: up to 4 years; 25-50g: up to 20 years; 450g+ cocaine: up to life; marijuana legal for adults 21+ (up to 2.5 oz) | Marijuana legal recreational (2018). Michigan treats simple possession of hard drugs as a felony but with first-offender options under MCL § 333.7403 and HYTA (Youthful Trainee Act) for those 17-24. Drug court available. |
| Minnesota | Minn. Stat. § 152.025 (5th degree possession — small amount); § 152.024 (4th degree); § 152.021 (1st degree possession with intent) | A first offense with no prior drug convictions is a gross misdemeanor only if the amount is small (under 0.25g or one dosage unit of a non-heroin drug, or under 0.05g of heroin); anything larger — or any amount with a prior drug conviction — is a 5th degree controlled substance crime, a felony (up to 5 years). Possession of larger amounts is a 4th degree or higher felony. Marijuana is legal recreational (2023). | Gross misdemeanor (small first-offense amounts, no priors); 5th degree felony (larger amounts or any prior drug conviction); higher-degree felony (large amounts) | 5th degree: up to 5 years (but stays of adjudication common); 1st degree (intent, large amount): up to 30 years; marijuana legal up to 2 oz | Minnesota 2023 reforms reduced many small-possession charges and made marijuana recreational. Small amount possession can still be a felony but stays of adjudication and diversion are common. Drug court available. |
| Mississippi | Miss. Code § 41-29-139(c) (possession of controlled substance); § 41-29-139(a) (possession with intent); § 41-29-113 (marijuana small amount decriminalization) | Possession of a Schedule I/II non-marijuana drug is weight-tiered: under 0.1g or 2 dosage units is a misdemeanor (up to 1 year and $1,000); 0.1-2g up to 3 years; 2-10g up to 8 years; 10-30g 3-20 years; 30g+ is trafficking (10-40 years mandatory). Marijuana under 30g carries a $100-250 fine. Possession with intent is a felony with harsher penalties. | Misdemeanor (Schedule I/II under 0.1g or 2 dosage units); felony (Schedule I/II above, weight-tiered; marijuana over 30g); fine (marijuana under 30g) | Under 0.1g/2 dosage units: up to 1 year (misdemeanor); 0.1-2g: up to 3 years and $50,000; 2-10g: up to 8 years and $250,000; 10-30g: 3-20 years; trafficking (30g+): 10-40 years mandatory; marijuana under 30g: $100-250 fine | Mississippi decriminalized small marijuana (under 30g, $100-250 fine). Medical marijuana legal (2022). No recreational marijuana. Mississippi weight-tiers hard-drug possession — under 0.1g or 2 dosage units is a misdemeanor, but 2g+ reaches 8 years and 30g+ is trafficking with a 10-40 year mandatory sentence. Drug court available for first offenders. |
| Missouri | Mo. Rev. Stat. § 579.015 (possession of controlled substance); § 579.020 (possession with intent); Mo. Const. Art. XIV (marijuana — Amendment 3 2022) | Possession of any amount of a controlled substance other than marijuana is a class D felony (up to 7 years). Marijuana is tiered: 10g or less is a class D misdemeanor (fine only, no jail), 10-35g a class A misdemeanor, and over 35g a class D felony. Probation and suspended imposition of sentence (SIS) are common for first offenders. Marijuana is legal recreational (2022, Amendment 3). | Class D felony (any non-marijuana controlled substance; marijuana over 35g); class A misdemeanor (marijuana 10-35g); class D misdemeanor (marijuana 10g or less) | Class D felony: up to 7 years; class A misdemeanor: up to 1 year; class D misdemeanor: fine only (marijuana 10g or less); possession with intent (class B felony for many drugs): up to 15 years | Marijuana legal recreational (2022, Amendment 3, adults 21+ up to 3 oz). Missouri's 2017 framework (579.015) makes any non-marijuana possession a class D felony, but SIS/probation is common for first offenders. Drug court available. |
| Montana | Mont. Code § 45-9-102 (possession of dangerous drugs); § 45-9-103 (possession with intent to distribute); Title 16, ch. 12 (adult-use marijuana) | Possession of a dangerous drug (Schedule I/II) is a felony. First offense is eligible for a deferred sentence (probation). Possession with intent is a higher felony. Marijuana is legal recreational (2020, Initiative 190). | Felony (dangerous drug possession); legal (marijuana under 1 oz for adults 21+) | Felony possession first offense: up to 5 years and $5,000 (deferred sentence presumed); possession with intent: up to 20 years and $50,000 (fentanyl: 2-40 years with a 2-year minimum); marijuana legal for adults | Marijuana legal recreational (2020). Montana treats simple possession of hard drugs as a felony but first offenders commonly get deferred sentences (probation, dismissal on completion). Drug court available. |
| Nebraska | Neb. Rev. Stat. § 28-416(3) (possession of controlled substance); § 28-416(1) (possession with intent); § 28-416(5) (marijuana) | Possession of a Schedule I/II/III controlled substance is a class IVA felony (up to 5 years) for first offense, but probation is common. Possession of marijuana under 1 oz is an infraction ($300 fine, no jail). Possession with intent is a higher felony. | Class IVA felony (controlled substance); infraction (marijuana under 1 oz) | Class IVA felony: up to 5 years; marijuana under 1 oz: $300 fine (no jail); possession with intent (class III/II felony): up to 20-50 years | Nebraska decriminalized small marijuana (under 1 oz, $300 fine, no jail). No medical or recreational marijuana program. Nebraska is harsh for hard drugs — simple possession is a felony on first offense, though probation is common. |
| Nevada | NRS § 453.336 (possession of controlled substance, including low-level tiers); § 453.3363 (probation/treatment provisions); § 453.337 (possession with intent to sell) | Possession of a Schedule I/II drug under 14 grams (Schedule III-V under 28 grams) is a category E felony (1-4 years) for a first or second offense, with judgment usually deferred into probation/treatment; a third offense is a category D felony; 14-28 grams (28-200 for Schedule III-V) is a category C felony (1-5 years); larger amounts are higher felonies. Marijuana is legal recreational (2016, Question 2). | Category E felony (1st/2nd offense, under 14g/28g); category D felony (3rd+); category C felony (14-28g tiers); higher categories (larger amounts); legal (marijuana under 1 oz for adults 21+) | Category E felony: 1-4 years (deferral/probation typical); category D (3rd+): 1-4 years plus fines up to $5,000 (up to $20,000 discretionary); category C: 1-5 years and up to $10,000; PWID: category B felonies and above; marijuana legal for adults | Marijuana legal recreational (2016). Nevada treats first- and second-offense hard-drug possession as a category E felony but with statutory deferral into probation/treatment. Drug court (NRS § 453.3363) available. Intent to sell carries harsh penalties. |
| New Hampshire | RSA § 318-B:2 (possession of controlled substance); § 318-B:26 (possession with intent); § 318-B:2 (marijuana decriminalization) | Possession of a Schedule I/II controlled substance (narcotic) is a class B felony (3.5-7 years). Possession of small amounts of marijuana (under 3/4 oz) is decriminalized ($100 fine first offense). Possession with intent is a higher felony. | Class B felony (Schedule I/II narcotics); civil fine (marijuana under 3/4 oz) | Class B felony: 3.5 to 7 years; marijuana under 3/4 oz: $100 fine (first offense); possession with intent: up to 20+ years | New Hampshire decriminalized marijuana (2017, under 3/4 oz, $100 fine). Medical marijuana legal (2013). No recreational marijuana. New Hampshire is harsh — simple possession of hard drugs is a class B felony on first offense. Drug court available. |
| New Jersey | NJ Rev. Stat. § 2C:35-10 (possession of controlled substance); § 2C:35-5 (possession with intent to distribute); § 2C:35-10(a)(3) (marijuana decriminalization/legalization) | Possession of a Schedule I/II/III controlled substance (other than marijuana) is a third-degree crime (felony, 3-5 years). Possession of small amounts of marijuana is legal (2021 legalization) for adults 21+. Possession with intent is a second- or first-degree crime. | Third-degree crime/felony (Schedule I/II/III possession); legal (marijuana under 1 oz for adults 21+) | Third-degree crime: 3 to 5 years; second-degree (intent): 5 to 10 years; first-degree (intent, large amount): 10 to 20 years; marijuana legal for adults | Marijuana legal recreational (2021, NJSA 21). New Jersey is harsh for hard drugs — simple possession is a third-degree felony on first offense. Pretrial Intervention (PTI) and drug court available for first offenders. |
| New Mexico | NM Stat. § 30-31-23 (possession of controlled substance); § 30-31-23(A) (marijuana); § 30-31-20 (trafficking/possession with intent) | Possession of a controlled substance is a fourth-degree felony (up to 18 months) for first offense. Possession of small amounts of marijuana (under 2 oz) is decriminalized/legal (recreational legalized 2021). Possession with intent is a higher-degree felony. | Fourth-degree felony (controlled substance); legal (marijuana under 2 oz for adults 21+) | Fourth-degree felony: up to 18 months; second-degree felony (intent): up to 9 years; first-degree felony (intent, large amount): up to 18 years; marijuana legal for adults | Marijuana legal recreational (2021, Cannabis Regulation Act). New Mexico treats simple possession of hard drugs as a fourth-degree felony on first offense. Drug court and conditional discharge available for first offenders. |
| New York | NY Penal Law § 220.03 (possession of controlled substance — 7th degree); § 220.06 (possession with intent — 5th degree); § 220.18 (intent, higher degrees); § 221 (marijuana, repealed/legalized) | Simple possession of a controlled substance (small amount) is a class A misdemeanor (up to 1 year) under § 220.03. Possession with intent is a class D/E felony. Marijuana is legal recreational (2021, Marijuana Regulation and Taxation Act). | Class A misdemeanor (simple possession small amount); class D/E felony (possession with intent); legal (marijuana under 3 oz for adults 21+) | Class A misdemeanor: up to 1 year; class D felony (intent): 1 to 2.5 years; class A-I felony (intent, large amount): up to life; marijuana legal for adults | New York reformed drug laws (2009 Rockefeller Drug Law reforms) — simple possession of small amounts is a misdemeanor. Marijuana legal recreational (2021). Drug court and judicial diversion widely available. |
| North Carolina | N.C. Gen. Stat. § 90-95(a)(3) (possession of controlled substance); § 90-95(a)(1) (possession with intent); § 90-95(d)(4) (marijuana under 0.5 oz) | Possession of a Schedule I drug, or of cocaine, methamphetamine, amphetamine or PCP (and their salts/isomers), is a class I felony on any offense. Fentanyl and carfentanil possession is a class I felony (class H from Dec 1, 2025). Possession of other Schedule II/III/IV drugs is a class 1 misdemeanor on a first offense and a class I felony on a second (or over 100 dosage units). Marijuana under 0.5 oz is an infraction ($200 fine). Possession with intent is a felony. | Class I felony (Schedule I; cocaine/meth/amphetamines/PCP; fentanyl — any offense); class 1 misdemeanor then class I felony (Schedule II/III/IV); infraction (marijuana under 0.5 oz) | Class 1 misdemeanor: up to 120 days; class I felony: 3-8 months presumptive at the lowest record level; PWID Schedule I/II: class H felony (sale class G, fentanyl PWID class F); marijuana under 0.5 oz: $200 fine | North Carolina treats Schedule I and cocaine/meth/fentanyl possession as a felony even on a first offense; only Schedule II-IV possession starts as a misdemeanor. Marijuana decriminalized under 0.5 oz ($200 fine). Medical marijuana limited (CBD only, 2014). No recreational marijuana. Drug court and deferred prosecution available. |
| North Dakota | NDCC § 19-03.1-23 (possession of controlled substance); § 19-03.1-23(1) (marijuana); § 19-03.1-23.1 (possession with intent) | Possession of a controlled substance is a class A misdemeanor (up to 360 days) on a first offense; a second or subsequent offense is a class C felony (up to 5 years), and possession on school property is a class B felony. Possession of marijuana under 0.5 oz is a criminal infraction (fine up to $1,000). Possession with intent is a felony. | Class A misdemeanor (first offense); class C felony (second or subsequent); class B felony (school property); infraction (marijuana under 0.5 oz) | Class A misdemeanor: up to 360 days; class C felony: up to 5 years; class A felony (intent, large amount): up to 20 years; marijuana under 0.5 oz: fine up to $1,000 | North Dakota decriminalized small marijuana (2019, under 0.5 oz, infraction). Medical marijuana legal (2016, Measure 5). No recreational marijuana. First-offense hard-drug possession is a misdemeanor, but subsequent is a felony. Drug court available. |
| Ohio | ORC § 2925.11 (possession of controlled substance); § 2925.03 (possession with intent to sell); ORC ch. 3780 (marijuana — Issue 2 legalization) | Possession of a controlled substance is a felony, with the degree based on amount and drug (lowest is 5th degree felony, 6-12 months, for small amounts). Marijuana is legal recreational (2023, Issue 2) for adults 21+. | 5th degree felony (small amount); higher-degree felony (larger amounts); legal (marijuana under 2.5 oz for adults 21+) | 5th degree felony: 6 to 12 months; 1st degree felony (intent, large amount): up to 11 years; marijuana legal for adults | Marijuana legal recreational (2023, Issue 2). Ohio treats simple possession of hard drugs as a felony even for small amounts (5th degree is the lowest felony). Drug court (ORC § 2951.041) and intervention in lieu of conviction available for first offenders. |
| Oklahoma | 63 Okla. Stat. § 2-402 (possession of controlled substance — reclassified by SQ 780); § 2-401 (possession with intent); HB 1799 (2023 fourth-offense felony) | Under SQ 780 (2016), simple possession of any controlled substance (including hard drugs) is a misdemeanor for the first, second, and third offense within 10 years (up to 1 year; a third carries a 30-day minimum). A fourth offense within 10 years is a felony (1-5 years, 2023 HB 1799) that can be reduced back to a misdemeanor on completing assessment and diversion. Possession with intent to distribute is always a felony. Medical marijuana legal (2018, SQ 788). | Misdemeanor (first, second, and third offense within 10 years); felony (fourth offense within 10 years, per 2023 reform; possession with intent) | Misdemeanor: up to 1 year and $1,000; fourth-offense felony: 1-5 years and up to $5,000; possession with intent: up to life (large amount); medical marijuana legal for cardholders | Oklahoma SQ 780 (2016) famously reclassified simple possession from felony to misdemeanor. 2023 HB 1799 added a felony for a fourth conviction within 10 years. Medical marijuana legal (2018). Drug court and deferred sentences available. |
| Oregon | ORS § 475.752(3) (possession of controlled substance); §§ 475.854/475.884/475.894 (heroin/cocaine/meth possession tiers); § 475.864 (marijuana); § 475.752(1) (manufacture/delivery/PWID) | Measure 110 (2021) made possession a non-criminal violation ($100 fine). HB 4002 (effective September 2024) re-criminalized it: under 2 grams of heroin, cocaine, or meth (or small amounts of other Schedule I-IV drugs) is a class E violation; 2 grams or more is a class A misdemeanor (up to 1 year); commercial-drug-offense quantities are a class C felony, and deflection to treatment must be offered instead of arrest. Marijuana is legal recreational (2014). | Class E violation (small amounts); class A misdemeanor (2g+ heroin/cocaine/meth); class C felony (commercial quantities); felony (PWID/manufacture); legal (marijuana under 1 oz for adults 21+) | Class A misdemeanor: up to 1 year; class C felony (commercial quantity): up to 5 years; manufacture/PWID of Schedule I: class A felony (up to 20 years); marijuana legal for adults | Oregon Measure 110 (2021) decriminalized small drug possession, but HB 4002 (2024) re-criminalized it as a violation/misdemeanor after public backlash. Marijuana legal recreational (2014). Deflection programs and treatment are emphasized over incarceration. |
| Pennsylvania | 35 PS § 780-113(a)(16) (possession of controlled substance — Act 6); § 780-113(a)(14) (possession with intent); § 780-113(a)(31) (marijuana small amount) | Simple possession is a misdemeanor on a first offense (up to 1 year and $5,000) and stays a misdemeanor on a second or subsequent offense (up to 3 years and $25,000). Possession with intent to deliver is a felony. Marijuana is medical-only (2016, Act 16); possession of a small amount (under 30g) carries up to 30 days. | Misdemeanor (all simple possession, first and subsequent); felony (possession with intent); misdemeanor (marijuana small amount under 30g) | Misdemeanor first offense: up to 1 year and $5,000; misdemeanor second+: up to 3 years and $25,000; felony (intent): up to 15 years (large amount); marijuana small amount: up to 30 days (<30g) | Pennsylvania: simple possession is always a misdemeanor, no matter how many prior offenses — only possession with intent (PWID) is a felony. Medical marijuana legal (2016). No recreational marijuana. Pennsylvania offers ARD (Accelerated Rehabilitative Disposition) and drug court for first offenders. |
| Rhode Island | RI Gen. Laws § 21-28-4.01(c) (possession of controlled substance); § 21-28-4.01(b) (possession with intent); § 21-28-4.01(j) (marijuana) | Possession of a Schedule I/II controlled substance is a felony first offense (up to 3 years). Possession of small amounts of marijuana is legal (recreational legalized 2022). Possession with intent is a higher felony. | Felony (Schedule I/II possession first offense); legal (marijuana under 1 oz for adults 21+) | Felony first offense: up to 3 years; felony (intent): up to life (large amount); marijuana legal for adults | Marijuana legal recreational (2022, Rhode Island Cannabis Act). Rhode Island treats simple possession of hard drugs as a felony on first offense. Drug court and deferred sentence available for first offenders. |
| South Carolina | S.C. Code § 44-53-370(d)(1) (possession of controlled substance); § 44-53-370(b) (possession with intent); § 44-53-370(d)(2) (marijuana under 1 oz) | Possession of a Schedule I/II/III controlled substance is a felony (up to 5 years first offense for Schedule I/II). Possession of marijuana under 1 oz is a misdemeanor (up to 30 days). Possession with intent is a higher felony. | Felony (Schedule I/II/III possession); misdemeanor (marijuana under 1 oz) | Felony first offense: up to 5 years (Schedule I/II); marijuana misdemeanor: up to 30 days; possession with intent: up to 30 years (large amount) | South Carolina is harsh — simple possession of hard drugs is a felony on first offense. Medical marijuana limited (CBD only, 2014). No recreational marijuana. Pretrial intervention (PTI) and drug court available for first offenders. |
| South Dakota | SDCL § 22-42-5 (possession of controlled substance); § 22-42-3 (possession with intent); § 22-42-6 (marijuana up to 2 oz — class 1 misdemeanor) | First offense possession of a small amount of a controlled substance is a class 1 misdemeanor (up to 1 year). Subsequent or larger amount is a felony (class 5 or higher). Possession of marijuana (small amount) is a misdemeanor; medical marijuana legal (2020, Initiated Measure 26). | Class 1 misdemeanor (first offense small amount); class 5 felony (second offense or larger); misdemeanor (marijuana small amount) | Class 1 misdemeanor: up to 1 year; class 5 felony: up to 5 years; class 1 felony (intent, large amount): up to 50 years; marijuana medical legal | South Dakota: first offense simple possession is a misdemeanor, but subsequent is a felony. Medical marijuana legal (2020). Recreational marijuana amendment overturned in 2021 and 2022 ballot measure failed. Drug court available. |
| Tennessee | T.C.A. § 39-17-418 (simple possession — casual exchange); § 39-17-417 (possession with intent); § 39-17-418(g) (third offense felony) | Simple possession or casual exchange is a class A misdemeanor regardless of the number of prior convictions (up to 11 months 29 days). Exceptions: heroin possession with two or more prior convictions under the statute is a class E felony; meth possession carries a 30-day mandatory minimum; casual exchange to a minor by an adult at least two years older is a felony. Marijuana under 0.5 oz is a misdemeanor (mandatory $250 fine on a first offense). | Class A misdemeanor (all simple possession, any offense count); class E felony (heroin with 2+ priors); misdemeanor (marijuana under 0.5 oz) | Class A misdemeanor: up to 11 months 29 days; class E felony (heroin, 2+ priors): 1-6 years; possession with intent: up to 60 years (class A felony at the highest tiers); marijuana misdemeanor: up to 1 year | Tennessee keeps simple possession a class A misdemeanor even on repeat offenses — the class E felony requires heroin plus two prior convictions under the statute. Medical marijuana limited (CBD only). No recreational marijuana. Judicial diversion and drug court available for first offenders. |
| Texas | Tex. Health & Safety Code § 481.115 (Penalty Group 1 — possession); § 481.116 (PG1A); § 481.121 (marijuana); § 481.112 (possession with intent to deliver) | Possession of any amount of a Penalty Group 1 controlled substance (cocaine, meth, heroin) is a felony — even under 1 gram is a state jail felony (180 days to 2 years). Possession of marijuana under 2 oz is a class B misdemeanor (up to 180 days). Possession with intent to deliver is a higher-degree felony. | State jail felony (PG1 under 1g); higher-degree felony (larger amounts); class B misdemeanor (marijuana under 2 oz) | State jail felony: 180 days to 2 years; first-degree felony (intent, large amount): up to life; marijuana under 2 oz: up to 180 days; marijuana 2-4 oz: up to 1 year | Texas is one of the harshest states — any possession of cocaine/meth/heroin is a felony, even under 1g (state jail felony). No medical or recreational marijuana (CBD-only Compassionate Use 2015 for epilepsy). Deferred adjudication widely available for first offenders (no conviction on completion). |
| Utah | Utah Code § 58-37-8(2)(b) (Schedule I/II possession); § 58-37-8(2)(d) (marijuana and other substances); § 58-37-8(1) (manufacture/PWID) | Possession of a Schedule I/II substance is a class A misdemeanor on a first or second offense; a third conviction (priors within 7 years) is a third-degree felony (up to 5 years). Possession of marijuana or Schedule III-V substances is a class B misdemeanor, rising to a class A on a third and a third-degree felony on a fourth conviction. Possession with intent is a second-degree felony (up to 15 years). Medical marijuana legal (2018, Prop 2). | Class A misdemeanor (Schedule I/II, first and second offense); third-degree felony (third conviction within 7 years); class B misdemeanor (marijuana/Schedule III-V first and second); legal with card (medical marijuana) | Class A misdemeanor: up to 1 year; class B misdemeanor: up to 6 months; third-degree felony: up to 5 years; PWID Schedule I/II: second-degree felony, up to 15 years (first degree on a subsequent conviction) | Utah keeps the first two Schedule I/II possession convictions misdemeanors; the felony arrives on a third conviction within 7 years. Medical marijuana legal (2018). No recreational marijuana. Drug court and reduction/plea in abeyance available for first offenders. |
| Vermont | 18 VSA §§ 4231-4234 (possession of cocaine, LSD, heroin, prescription drugs); § 4233a (second/subsequent offense); 7 VSA ch. 97 (marijuana legalization) | First offense possession of cocaine, heroin, LSD, or prescription drugs (18 VSA §§ 4231-4234) is a misdemeanor (up to 1 year). A second or subsequent offense is a felony (18 VSA § 4233a). Marijuana is legal recreational (2018, first state to legalize via legislature). | Misdemeanor (first offense); felony (second/subsequent offense); legal (marijuana under 1 oz for adults 21+) | Misdemeanor: up to 1 year; felony: up to 5+ years; marijuana legal for adults; possession with intent: up to 30+ years (large amount) | Vermont legalized recreational marijuana via legislature (2018). Vermont treats first-offense simple possession as a misdemeanor. Drug court and diversion available for first offenders. |
| Virginia | Va. Code § 18.2-250 (possession of controlled substance); § 18.2-248 (possession with intent to distribute); § 18.2-251 (first offender statute); § 4.1-1101 (marijuana legalization) | Possession of a Schedule I/II controlled substance is a class 5 felony (1-10 years) or class 6 felony (1-5 years) depending on the drug. First offenders may receive deferred disposition and probation (§ 18.2-251), avoiding a conviction. Marijuana is legal recreational (2021, possession legal for adults 21+). | Class 5 or 6 felony (Schedule I/II possession); legal (marijuana under 1 oz for adults 21+); deferred disposition available for first offenders | Class 5 felony: 1 to 10 years; class 6 felony: 1 to 5 years; possession with intent: 5 to life (class 5 felony, large amount); marijuana legal for adults | Virginia: simple possession of hard drugs is a felony, but first offenders get deferred disposition (§ 18.2-251) — dismissal on completion of probation/treatment. Marijuana legalized (2021, possession legal up to 1 oz; sales framework pending). |
| Washington | RCW § 69.50.413 (simple possession, SB 5536 2023); § 69.50.401(a) (possession with intent); § 69.50.360 (marijuana legalization) | Following State v. Blake (2021) and SB 5536 (effective July 1, 2023), simple possession of any controlled substance is a gross misdemeanor — up to 180 days and/or a $1,000 fine, rising to 364 days with two or more prior possession convictions. There is no felony for simple possession, and eligible defendants must be offered pretrial diversion. Possession with intent is a felony. Marijuana is legal recreational (2012, Initiative 502). | Gross misdemeanor (simple possession, any offense count); felony (possession with intent); legal (marijuana under 1 oz for adults 21+) | Gross misdemeanor: up to 180 days (364 days with two or more priors) and up to $1,000; possession with intent: felony scaled to drug and amount; marijuana legal for adults | Washington reformed possession law after State v. Blake (2021, WA Supreme Court struck down the felony possession statute as unconstitutional). SB 5476 (2021) made it a misdemeanor, and SB 5536 (2023) set the current gross-misdemeanor scheme with mandatory pretrial diversion — simple possession is no longer a felony. Marijuana legal recreational (2012). Diversion and drug court available. |
| West Virginia | WV Code § 60A-4-401(c) (simple possession, including marijuana); § 60A-4-401(a) (manufacture/delivery/PWID); § 60A-4-407 (conditional discharge) | Simple possession of ANY controlled substance — including hard drugs — is a misdemeanor (90 days to 6 months in jail and/or up to $1,000), with no felony escalation. A first offense of under 15g of marijuana or synthetic cannabinoids is eligible for conditional discharge. Possession with intent to manufacture/deliver is a felony (1-15 years for Schedule I/II narcotics or meth). Medical marijuana legal (2017). | Misdemeanor (all simple possession, any drug); felony (manufacture/delivery/possession with intent) | Misdemeanor: 90 days to 6 months and up to $1,000; PWID Schedule I/II narcotic or meth: 1-15 years and up to $25,000 (knowing fentanyl: 3-15 years and $50,000); other Schedule I/II/III PWID: 1-5 years | West Virginia keeps simple possession a misdemeanor for all drugs — bills to make it a felony have repeatedly failed — but manufacture/delivery/PWID is a felony with real prison time. Medical marijuana legal (2017, but limited). No recreational marijuana. Drug court available for first offenders. |
| Wisconsin | Wis. Stat. § 961.41(3g) (possession of controlled substance); § 961.41(1)(cm) (possession with intent); § 961.41(3g)(e) (marijuana/THC) | Possession of a Schedule I/II narcotic (heroin, fentanyl, etc.) is a class I felony even on a first offense. Possession of cocaine or cocaine base is a misdemeanor on a first conviction (up to 1 year county jail + $5,000 fine) and a class I felony on a second. Possession of other controlled substances, including marijuana/THC, is a misdemeanor on a first offense and a class I felony on a second. Possession with intent is a felony. | Class I felony (Schedule I/II narcotics, any offense; cocaine and other drugs on a second offense); misdemeanor (first offense of cocaine, marijuana/THC, and other controlled substances) | Class I felony: up to 3.5 years and $10,000; misdemeanor: up to 1 year (cocaine first conviction: up to 1 year jail + $5,000 fine); marijuana/THC first offense: up to 6 months and $1,000; possession with intent: felony penalties scaled to drug and amount | Wisconsin is unusual: first-offense possession of a Schedule I/II narcotic is already a felony, while first-offense cocaine or marijuana possession is a misdemeanor. No medical or recreational marijuana (CBD-only law 2017 for seizures). First-offender diversion and drug court available. |
| Wyoming | Wyo. Stat. § 35-7-1031 (possession of controlled substance); § 35-7-1031(c) (marijuana); § 35-7-1031(a) (possession with intent) | Possession of small amounts of any controlled substance is a misdemeanor (up to 12 months and $1,000): plant form up to 3 oz, liquid up to 0.3g, powder/pills up to 3g, crack up to 0.5g, LSD up to 0.3g. Meth or Schedule I/II narcotics above those thresholds is a felony (up to 7 years and $15,000); other Schedule I/II/III above = up to 5 years; a third or subsequent small-amount offense = up to 5 years. Marijuana over 3 oz is a felony. Possession with intent is a higher felony. | Misdemeanor (small amounts of any controlled substance); felony (meth/Schedule I-II narcotics above thresholds; third+ offense; marijuana over 3 oz) | Misdemeanor: up to 12 months and $1,000; meth/narcotic felony: up to 7 years and $15,000; third+ small-amount offense: up to 5 years and $5,000; manufacture/delivery/PWID: up to 20 years and $25,000 | Wyoming is harsh but not absolute — possession of meth or Schedule I/II narcotics above small-amount thresholds (e.g., over 3g of powder) is a felony, while small first-offense amounts are misdemeanors. No medical or recreational marijuana. Drug court available for first offenders. |
The Short Answer
Whether drug possession is a felony depends on four things: (1) the state you are charged in, (2) the drug and its federal schedule, (3) the amount in your possession, and (4) your prior criminal record. There is no single national rule. The same amount of the same drug can be a misdemeanor in one state and a felony in another. As a general rule: simple possession of small amounts of marijuana is a misdemeanor or non-criminal in most states (and fully legal in 24 states + DC), while simple possession of harder drugs like heroin, cocaine, and methamphetamine is a felony in most states on a first offense. A minority of states — California, Maryland, Massachusetts, New York, Connecticut, Maine, Vermont, Oklahoma (first/second/third offense post-SQ 780), Tennessee (any offense count), Utah (first/second offense), and others — treat first-offense simple possession of small amounts of any drug as a misdemeanor. But even in those states, larger amounts, possession with intent to distribute, or prior convictions can turn the same charge into a felony.
Simple Possession vs. Possession with Intent
Every state draws a line between "simple possession" (having a drug for personal use) and "possession with intent to deliver, distribute, or manufacture" (having a drug to sell or share). This distinction is the single biggest factor in whether you face a misdemeanor or a felony. Simple possession is the lower-level charge and is what most users are charged with; possession with intent is a felony in every state, often carrying years to decades in prison.
How does a prosecutor prove intent? Two ways: (1) the amount of the drug exceeds a statutory "personal use" threshold, in which case intent is presumed (e.g., possessing 28+ grams of cocaine, 4+ grams of meth, 1+ gram of heroin often triggers intent in many states); or (2) circumstantial evidence of sale — packaging in multiple small baggies, scales, large amounts of cash, communications about sales, or a quantity inconsistent with personal use even below the statutory threshold. You can be charged with intent even for a small amount if the packaging and paraphernalia suggest sale. Always treat any amount above a personal-use threshold as a potential felony intent charge.
Drug Schedules and Which Drugs Are Felonies
The federal Controlled Substances Act (21 USC 801 et seq.) classifies drugs into five schedules, and most states adopt the federal schedules with some state-specific additions. Schedule I drugs (heroin, LSD, marijuana federally, ecstasy) have no accepted medical use and high abuse potential. Schedule II drugs (cocaine, methamphetamine, fentanyl, oxycodone, Adderall) have accepted medical use but high abuse potential. Schedule III/IV/V (anabolic steroids, ketamine, benzodiazepines, codeine cough syrup) have lower abuse potential.
As a general rule, possession of Schedule I and II substances is treated most seriously. In harsh states like Florida, Texas, Georgia, and South Carolina, possession of any amount of a Schedule I/II drug is a felony on a first offense. Lower-schedule drugs (III/IV/V) are more often misdemeanors, and possession of prescription drugs with a valid prescription is legal. Marijuana is a special case: although it is Schedule I federally, 24 states + DC have legalized recreational use and most others treat small possession as a misdemeanor or civil infraction. Fentanyl's rise has caused some states to increase penalties for fentanyl possession specifically. Always check the specific drug schedule in your state.
Marijuana — Legalization, Decriminalization, and the Misdemeanor/Felony Line
Marijuana is the clearest example of state-by-state variation. As of 2026:
- 24 states + DC have legalized recreational marijuana for adults 21+ (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, Virginia, Washington, plus DC). In these states, possession of small personal amounts (typically 1-3 ounces) is legal under state law. - Another 7-8 states have decriminalized small amounts (a civil fine, not a criminal offense): Hawaii, Louisiana (under 14g, $100), Mississippi (under 30g, $250), Nebraska (under 1 oz, $300), New Hampshire (under 3/4 oz, $100), North Carolina (under 0.5 oz, $200), North Dakota (under 0.5 oz, infraction). - The remaining states (Alabama, Idaho, Indiana, Kansas, Oklahoma for non-cardholders, South Carolina, Tennessee, Texas, Utah, Wisconsin, Wyoming, and others) treat marijuana possession as a criminal misdemeanor, with larger amounts or repeat offenses as felonies.
Even in legal states, possession above the personal-use limit, possession by minors, possession in public places, or driving under the influence can still be charged. Federally, marijuana remains a Schedule I substance, and federal simple possession of marijuana has been pardoned for U.S. citizens and lawful permanent residents under 2022-2023 Biden proclamations (though this does not cover state offenses or distribution charges).
Prior Convictions and 3rd-Strike Elevations
Prior drug convictions are a major felony trigger. Several states make a second or third simple-possession conviction a felony even when the first offense is a misdemeanor:
- Oklahoma: SQ 780 (2016) made simple possession a misdemeanor, but 2023 HB 1799 added a felony for a fourth offense within 10 years (1-5 years). - North Carolina: Schedule II-IV possession is a class 1 misdemeanor on a first offense and a class I felony on a second; Schedule I drugs and cocaine/meth/amphetamines/PCP/fentanyl are class I felonies on any offense. - Tennessee: simple possession stays a class A misdemeanor on any offense count — only heroin possession with two or more prior convictions becomes a class E felony. - Utah: the first two Schedule I/II possession offenses are class A misdemeanors; a third conviction within 7 years is a third-degree felony. - Iowa: first offense is a serious misdemeanor; second is an aggravated misdemeanor; third is a class D felony. - Pennsylvania: simple possession stays a misdemeanor even on a second or subsequent offense (up to 3 years). - Wisconsin: first-offense possession of a Schedule I/II narcotic is already a class I felony; cocaine and most other drugs become class I felonies on a second offense.
Federally, 21 USC 844(a) escalates with each prior: first offense (no priors) is a misdemeanor (up to 1 year); one prior raises it to 15 days-2 years; two or more priors raise it to 90 days-3 years (a felony under 18 USC 3559 because the maximum exceeds 1 year). Minimum sentences cannot be suspended or deferred. This means the same simple possession that was once a misdemeanor becomes a felony through repetition — a powerful reason to fight a first charge and avoid a conviction.
Federal Drug Possession (21 USC 844) and Trafficking Thresholds
Most simple-possession cases are prosecuted in state court under state law, but federal law applies on federal property, in federal buildings, on tribal land, in national parks, and when federal agents make the arrest. 21 USC 844(a) is the federal simple-possession statute. Its penalty structure:
- First offense (no prior drug convictions): up to 1 year imprisonment, minimum $1,000 fine. Under 18 USC 3559, an offense with a maximum term of 1 year or less is a misdemeanor, so a first federal simple possession is a misdemeanor. - One prior drug conviction (under federal drug laws or a state drug/narcotic/chemical offense): 15 days to 2 years, minimum $2,500 fine. Because the maximum exceeds 1 year, this is a felony under 18 USC 3559. - Two or more prior drug convictions: 90 days to 3 years, minimum $5,000 fine. This is a felony.
The minimum sentences cannot be suspended or deferred. Flunitrazepam (roofies) carries up to 3 years regardless of the standard tiers. The Fair Sentencing Act (2010) eliminated prior crack-cocaine mandatory minimums that had applied to simple possession. Federal trafficking thresholds under 21 USC 841 carry far heavier penalties: e.g., 28+ grams of cocaine base (crack) triggers a 5-year mandatory minimum; 280g+ triggers 10 years. Two Biden proclamations (2022, 2023) pardoned federal simple possession of marijuana for U.S. citizens and lawful permanent residents, but did not cover other drugs, state offenses, or distribution charges.
Diversion, Drug Court, and Collateral Consequences
Even when a charge is technically a felony, most states offer diversion, drug court, deferred adjudication, or first-offender programs that can result in dismissal upon completion of treatment, probation, and other conditions. These programs vary by state but are widely available for first-time offenders and are often the best outcome short of acquittal. Examples include California's PC 1000 and Prop 36, Illinois's 1410 probation, Georgia's First Offender Act, Virginia's § 18.2-251 deferred disposition, Texas deferred adjudication, Oklahoma's deferred sentence, and drug courts in nearly every jurisdiction. Ask your lawyer about every available option.
Collateral consequences make the misdemeanor/felony line especially important. A felony drug conviction can trigger: loss of professional licenses; federal student aid ineligibility (FAFSA) for a period; public housing denial; firearm possession bans (federal, 18 USC 922(g)); immigration consequences for non-citizens, including deportation and inadmissibility (controlled substance convictions are deportable offenses); enhanced sentences for future offenses; and in some states, loss of voting rights while incarcerated or on parole. A misdemeanor still carries jail, fines, probation, and a criminal record, but is generally easier to expunge and less damaging long-term. Non-citizens should consult an immigration attorney before any plea, because even a misdemeanor drug conviction can have immigration consequences.
What to Do If Charged
If you are charged with drug possession, take it seriously even if it is "just a misdemeanor." Concrete steps:
1. Get a lawyer. If you cannot afford one, request a public defender at your first court date. Do not represent yourself. 2. Ask about diversion, drug court, deferred adjudication, and first-offender programs. These can result in dismissal and are often available for first-time offenders. Your lawyer should know what your jurisdiction offers. 3. Do not make statements to police without a lawyer present. Anything you say can be used against you, including admissions about ownership of the drugs. 4. Do not consent to a search. If police ask to search you, your car, or your home without a warrant, politely decline. Illegal searches can lead to suppression of evidence under the Fourth Amendment. 5. Preserve evidence and witnesses. Note the time, location, officers present, and any witnesses. This can matter for motions to suppress. 6. Consider treatment. If you have a substance use issue, getting into treatment before sentencing can help your case and your life. Many diversion programs require treatment anyway. 7. Understand the collateral consequences. Before accepting any plea, ask your lawyer about immigration, financial aid, housing, employment, and firearms consequences. A plea that looks minor can have major ripple effects. 8. If you complete diversion or deferred adjudication, follow up to ensure the record is sealed or expunged. Many states require a separate petition.
This page is informational only, not legal advice. Statutes change, and the table above may not reflect the very latest amendments. Confirm the current version of any statute with your state legislature or a licensed criminal defense attorney.
Frequently Asked Questions
- Is simple drug possession a felony or a misdemeanor?
- It depends on the state, the drug, the amount, and your prior record. In harsh states like Florida, Texas, Georgia, and South Carolina, simple possession of any amount of a hard drug (heroin, cocaine, meth) is a felony on a first offense. In lenient states like California, Maryland, Massachusetts, New York, and Maine, first-offense simple possession of small amounts of any drug is a misdemeanor. Possession of amounts above a personal-use threshold, or with evidence of sale, is a felony in every state.
- Is marijuana possession a felony?
- In most states, no — small personal possession of marijuana is a misdemeanor, a civil infraction, or fully legal. As of 2026, 24 states + DC have legalized recreational marijuana, and another 7-8 have decriminalized small amounts (civil fine, no jail). In the remaining states (Idaho, Kansas, South Carolina, Wyoming, etc.), marijuana possession is a criminal misdemeanor, with larger amounts (often over 1 oz or 3 oz) or repeat offenses charged as felonies.
- What amount of drugs makes it a felony instead of simple possession?
- Amount thresholds vary by state and drug. Generally, once the amount exceeds a "personal use" threshold, the charge escalates from simple possession to possession with intent to deliver — a felony in every state. Examples: 28+ grams of cocaine, 4+ grams of methamphetamine, 1+ gram of heroin, or 10+ grams of marijuana often trigger intent in many states. Even below these thresholds, circumstantial evidence of sale (bagging, scales, cash, customer lists) can support an intent charge.
- Can a first drug offense be a felony?
- Yes, in many states. In Florida, Texas, Georgia, South Carolina, Alabama, Idaho, Kansas, Mississippi, New Jersey, New Mexico, Ohio, Rhode Island, Wisconsin, Wyoming, and others, first-offense simple possession of a Schedule I/II hard drug (heroin, cocaine, meth) is a felony. In California, Maryland, Massachusetts, New York, Connecticut, Maine, Oklahoma (first/second offense), Tennessee (any offense count), Utah (first/second offense), and others, first-offense simple possession of small amounts is a misdemeanor.
- Does a prior drug conviction make the next one a felony?
- Often yes. Many states escalate penalties with prior drug convictions. Examples: North Carolina (second = felony; Schedule I and cocaine/meth/fentanyl = felony on any offense), Utah (third within 7 years = felony), Oklahoma (fourth within 10 years = felony per 2023 HB 1799), Iowa (third = felony), Minnesota (any prior drug conviction makes the next possession a 5th-degree felony), Wisconsin (Schedule I/II narcotics are a felony even on a first offense; cocaine and most others on a second). Federally, 21 USC 844(a) makes a second federal simple-possession offense carry up to 2 years (a felony under 18 USC 3559).
- What is the federal penalty for simple drug possession?
- Under 21 USC 844(a), a first federal simple-possession offense is a misdemeanor (up to 1 year, minimum $1,000 fine). One prior drug conviction raises it to 15 days-2 years (a felony). Two or more priors raise it to 90 days-3 years (a felony). The minimums cannot be suspended. Federal trafficking thresholds under 21 USC 841 carry much heavier mandatory minimums (e.g., 28g+ of crack cocaine = 5 years). Federal marijuana simple possession has been pardoned for U.S. citizens and lawful permanent residents under 2022-2023 Biden proclamations.
- What is Oregon's current drug possession law after Measure 110?
- Oregon Measure 110 (effective 2021) decriminalized small amounts of all drugs, making personal possession a non-criminal violation with a $100 fine and a health assessment. In 2024, after public backlash over overdoses and public drug use, the legislature passed HB 4002 (effective September 2024), which re-criminalized personal possession: under 2 grams of heroin, cocaine, or meth is a class E violation; 2 grams or more is a class A misdemeanor (up to 1 year); commercial-drug-offense quantities are a class C felony, and possession with intent to deliver remains a felony. Deflection to treatment must be offered instead of arrest for eligible cases.
- Can I get diversion or drug court for a drug possession charge?
- In most states, yes, especially for a first offense. Diversion, drug court, deferred adjudication, and first-offender programs allow defendants to complete treatment, probation, and other conditions in exchange for dismissal or a reduced charge. Examples include California's PC 1000/Prop 36, Illinois's 1410 probation, Georgia's First Offender Act, Virginia's § 18.2-251 deferred disposition, Texas deferred adjudication, and drug courts in nearly every jurisdiction. Ask your lawyer about every available option in your state.
- Can a drug possession conviction affect my immigration status?
- Yes, significantly. For non-citizens (including lawful permanent residents), a controlled substance conviction — even a misdemeanor — can trigger deportation, inadmissibility, and denial of naturalization under federal immigration law. Possession of 30 grams or less of marijuana for personal use has a limited exception, but most other drug convictions are deportable offenses. Non-citizens should always consult an immigration attorney before accepting any plea in a drug case. Some dispositions that avoid a "conviction" for immigration purposes (like certain diversions) may be available.
- Can a drug possession felony be expunged?
- It depends on the state and the offense. Many states allow expungement or sealing of drug possession convictions after a waiting period, especially for misdemeanors and lower-level felonies. As of 2023, 45 states, DC, and two territories have record-clearing laws that may apply to drug offenses, with 28 states having cannabis-specific expungement and 11 + DC having automatic expungement mechanisms. Felonies are generally harder to expunge than misdemeanors, and some states exclude certain drug felonies (especially intent-to-deliver) from expungement. Consult a lawyer about your state's expungement process.
Helpful Resources
- Is Fraud a Felony?
Fraud and theft by deception — often charged alongside prescription/drug fraud schemes.
- Is It a Felony? How Felonies Work
What makes a crime a felony vs misdemeanor, felony classes, and grading.
- Felony vs Misdemeanor
The difference between felonies and misdemeanors — and why simple possession is often a misdemeanor.
- Felony Classes by State
Class A/B/C/D, Level 1-6, and degree felony systems explained state by state.
- Expungement Guide
Drug possession convictions are among the most commonly expunged — state-by-state rules.
- Criminal Defense Lawyers
Find a criminal defense attorney experienced in drug possession cases.
- Probation by State
Drug court and probation conditions by state — a common alternative to prison for possession.
More Criminal Law Guides
Related Resources on This Site
Helpful guides
- Free Legal AidFree legal aid by state
- ExpungementClean Slate laws — automatic expungement
- Background ChecksWhat shows up on a background check?
- ToolsReentry Checklist — Preparation Steps After Release
Disclaimer: This is general legal information only, not legal advice. Laws vary by state and jurisdiction. Criminal classifications, penalties, and procedures differ depending on where the offense occurred and the specific facts of the case. For advice about your specific situation, consult a licensed criminal defense attorney. If you cannot afford an attorney, you may be entitled to a public defender — ask the court how to apply. For separate civil issues such as housing or benefits, a civil legal aid organization may be able to help, subject to eligibility and capacity. Use the court’s appointed-counsel process for a criminal defense request.
Sources
- 21 U.S.C. § 844 — Simple possession of controlled substances (federal)
- 21 U.S.C. § 841 — Drug trafficking thresholds and mandatory minimums (federal)
- 18 U.S.C. § 3559 — Classification of federal offenses (misdemeanor vs. felony)
- DEA — Drug scheduling (Schedules I–V definitions)
- NCSL — Cannabis overview (state legalization, decriminalization, medical laws)
- NCSL — State medical cannabis laws
- Ballotpedia — Oregon Measure 110, Drug Decriminalization (2020) and 2024 re-criminalization (HB 4002)
- White House — Proclamation pardoning federal simple possession of marijuana (2022)
- Justia — Alabama Code Title 13A, Ch. 12 (controlled substances)
- Justia — California Health & Safety Code (controlled substances, §§ 11350–11377)
- Florida Senate — Florida Statutes § 893.13 (drug offenses)
- Texas Statutes — Health & Safety Code Ch. 481 (Controlled Substances Act)
- Justia — New York Penal Law Article 220 (controlled substances)
- Justia — Georgia Code Title 16, Ch. 13 (controlled substances)
- Justia — Illinois Compiled Statutes 720 ILCS 570 (Controlled Substances Act)
- Justia — Arizona Revised Statutes Title 13, Ch. 34 (drug offenses)
- Justia — Ohio Revised Code § 2925.11 (possession of controlled substance)
- Justia — Colorado Revised Statutes § 18-18-403.5 (unlawful possession)
- Washington Legislature — RCW § 69.50.413 (simple possession, SB 5536 2023)
- MPP — Marijuana Policy Project state legalization tracker
- Drug Policy Alliance — Oregon Measure 110 and HB 4002 (2024 re-criminalization)
- SAMHSA — Substance use treatment locator (for diversion/treatment programs)