NRS 453.336 – Drug Possession – Nevada Law & Penalties

NRS § 453.336 prohibits the unlawful possession of certain narcotics and controlled substances. Specifically, Nevada law states that a “person shall not knowingly or intentionally possess a controlled substance, unless the substance was obtained directly from…a prescription.”

Here are four key things to know:

1. Many first-time drug possession charges can be dismissed if you complete probation.
2. Addicts may be eligible for Drug Court, a rehab program that results in the case being dismissed.
3. You can lawfully possess up to 2.5 ounces of marijuana, but only in a private residence or licensed social use lounge.
4. You can fight drug possession charges by arguing that you did not know the drugs were there, or the police found them through an illegal search.

The following bubble graph shows common defenses to possession charges.

In this article, our Las Vegas criminal defense attorneys answer frequently asked questions about narcotics possession laws in Nevada.

• 1. “Drug Possession” Defined
• 2. Types of Possession
• 3. Prohibited Drugs
• 4. Defenses
• 5. Penalties
• 6. Dismissals and Drug Court
• 7. Record Seals
• 8. Immigration Consequences
• 9. Related Drug Offenses
• 10. Hiring an Attorney
• Additional Reading

1. “Drug Possession” Defined

Possession of a controlled substance is deliberately owning or having control over drugs with no plan to sell them.¹ Other common terms for drug possession include:

• PCS (short for possession of a controlled substance)
• straight possession
• simple possession
• possession of drugs for personal use
• recreational possession

Drug possession in Nevada is one of the least serious narcotics crimes because it usually involves small quantities and no pending drug sales. Still, it is a felony, and a conviction can cause you to lose out on employment and housing opportunities.

2. Types of Possession

Possessing means to knowingly exercise control. This is not the same as ownership. Stealing drugs puts the thief in possession of those drugs even though the thief does not own them.

There are three types of illegal drug possession in Nevada:

1. Actual possession, which is when you physically keep the narcotics on your person. An example is carrying a baggie of crack in your hand or back pocket.
2. Constructive possession, which is when you store drugs in a location you have control over. An example is keeping stolen Vicodin or other prescription drugs in your dresser drawer or glove compartment.
3. Joint possession, which is when you and another person(s) share control or ownership of the same drug. An example is a wife letting her husband keep heroin in their fridge — both spouses can be prosecuted for possession even if the wife does not use the heroin herself.²

Therefore, “possession of drugs” has a broad legal meaning. It extends to any location you control, such as your body, home, car, or storage facility.

Drug possession is a separate Nevada crime from being under the influence of a controlled substance (NRS 453.411). You can be arrested for being high whether or not you are in possession of drugs:

Example: Sarah takes ecstasy at a party and walks home. A police officer sees her stumbling and arrests her for being under the influence of drugs. But since Sarah had no ecstasy in her possession, she should not face possession charges. It does not matter that Sarah recently possessed ecstasy in order to get high.

Drug possession is also a separate crime from possession of drug paraphernalia (NRS 453.566). If Sarah in the above example had a crack pipe or syringe on her, she could face Nevada charges for paraphernalia possession but not drug possession.

3. Prohibited Drugs

NRS 453.336 prohibits you from having any controlled substance without a current doctor’s prescription in Nevada. (The only exception is that adults 21 or older may possess up to two-and-a-half ounces of marijuana.)

Controlled substances are categorized into five different schedules.³

Controlled Substances	Examples
Schedule I	PCP Ecstasy Heroin LSD Marijuana
Schedule II	Methamphetamine Methadone Cocaine Ritalin OxyContin
Schedule III	Anabolic steroids Ketamine
Schedule IV	Xanax Valium Rohypnol Ambien
Schedule V	Robitussin AC Codeine (no more than 200 milligrams per 100 grams) Opium (no more than 100 milligrams per 100 grams)

4. Defenses

Here at Las Vegas Defense Group, we have represented literally thousands of people charged with drug possession. In our experience, two defenses that have proven very effective with prosecutors and judges at getting these charge reduced or dismissed are:

1. You did not know about the drugs; or
2. The police conducted an illegal search.

Also, Good Samaritans who report an overdose are immune from drug possession charges.⁴

You Had No Knowledge of the Drugs

If you honestly had no idea that drugs were on your body or property, you broke no law.⁵

Example: Josh borrows Henry’s car and leaves his Percocet under the passenger seat without telling Henry. Henry is not guilty of possession because he does not know drugs are in his car. But if Henry finds the pills and decides to keep them, then he could face prosecution for the Las Vegas drug crime of possession.

Common evidence in NRS 453.336 cases includes surveillance video, eyewitness testimony, and recorded communications such as text messages by you.

The Police Conducted an Illegal Search

Law enforcement may conduct searches and seizures that adhere to the Fourth Amendment. However, sometimes police overstep their bounds and obtain evidence through unlawful means.

When the police break the law, the defense attorney can ask the judge to disregard any illegally obtained evidence. This is called a motion to suppress evidence. If the judge grants this motion, the prosecution might have to dismiss the Nevada drug possession charges for lack of proof.

5. Penalties

Possession penalties in Nevada depend on the type of drug and whether you have past drug offenses in Nevada or anywhere throughout the U.S. As discussed in the next section, you may be able to get the charge dismissed.⁶

Drug Type	Nevada Possession Penalties (NRS 453.336)
Schedule I or II to less than 14 grams; or Schedule III, IV, or V to less than 28 grams	“Possession of a Controlled Substance” A first or second offense is a category E felony: A full dismissal if you complete various sentencing terms, which typically include fines and rehab A third or subsequent offense is a category D felony: 1 – 4 years in Nevada State Prison, up to $5,000 in fines, and an additional fine of up to $20,000 (at the judge’s discretion)
Schedule I or II to 14 grams to less than 28 grams; or Schedule III, IV, or V to 28 grams to less than 200 grams	“Low-level Possession of a Controlled Substance” Category C felony: 1 – 5 years in prison and up to $10,000 in fines
Schedule I or II to 28 grams to less than 42 grams; or Schedule III, IV, or V to 200 grams or more	“Mid-level Possession of a Controlled Substance” Category B felony: 1 – 10 years in prison and $50,000 in fines
Schedule I or II to 42 grams to less than 100 grams	“High-level Possession of a Controlled Substance” Category B felony: 2 – 15 years in prison and $50,000 in fines
Gamma-hydroxybutyrate (GHB); or Flunitrazepam (Rohypnol)	Category B felony: 1 – 6 years in prison
Public consumption of marijuana	Misdemeanor: $600 in fines

For more information about marijuana penalties, see our article on marijuana possession.

Note that drug possession is both a Nevada state and federal crime. If you are caught with drugs on federal land, you will likely be charged in federal court rather than state court. Learn more about federal drug possession laws (21 U.S.C. § 844).

Also note that driving high is prosecuted as driving under the influence in Nevada, the same as if the driver was drunk.

When Drug Possession Becomes Trafficking

Possessing large amounts of certain drugs is automatically charged as trafficking in Nevada, even if you had no intention of selling them. The higher the amount, the harsher the punishment.

Weight of Schedule I or II Drugs, GHB, or Rohypnol (not including fentanyl or marijuana)	Trafficking Penalties in Nevada
100 to less than 400 grams	“Low-level trafficking” Category B felony: 2 – 20 years in prison and up to $100,000 in fines
400 grams or more	“High-level trafficking” Category A felony: 25 years – life in prison with the possibility of parole after 10 years and up to $500,000 in fines

Meanwhile, the penalties for trafficking fentanyl apply when the amount involved is 28 grams or more:

Weight of Fentanyl	Trafficking Penalties in Nevada
28 to less than 42 grams	Category B felony: 1 – 10 years in prison
42 to less than 100 grams	Category B felony: 2 – 15 years in prison

Finally, the penalties for trafficking marijuana apply when the amount involved is 50 pounds or more (or 1 pound or more of concentrated cannabis).

Weight of Marijuana	Trafficking Penalties in Nevada
50 lbs. to less than 1,000 lbs (or 1 lb. to less than 20 lbs. of concentrated cannabis)	Category C felony: 1 – 5 years in prison and up to $25,000 in fines
1,000 lbs. to less than 5,000 lbs. (or 20 lbs. to less than 100 lbs. of concentrated cannabis)	Category B felony: 2 – 10 years in prison and up to $50,000 in fines
5,000 lbs. or more (or 100 lbs. or more of concentrated cannabis)	Category A felony: 15 years – life in prison with the possibility of parole after 5 years and up to $200,000 in fines

6. Dismissals and Drug Court

You may be able to get your Nevada possession charge dismissed by deferred judgment, which may include doing Drug Court. This is a type of alternative sentencing involving an intensive rehabilitation program.⁷

Otherwise, prosecutors may be willing to reduce the felony possession charge down to a misdemeanor narcotics charge under NRS 454.351. The standard sentence for this plea bargain includes:

• probation,
• rehab,
• an order not to get arrested again while the case is pending,
• community service, and
• a suspended jail sentence, which means you do no jail as long as you complete the above terms.

As discussed above in section 4, the best-case scenario is to win a possession case on the merits. A defense attorney’s first goal is to convince prosecutors that their evidence is too weak to sustain a conviction. Then the prosecutors may drop the charges without any conditions.

The vast majority of Nevada drug possession cases are resolved without a trial. If negotiations fail, you may demand a jury trial where the prosecution has the burden to prove guilt beyond a reasonable doubt. If the jury acquits you, the case will be dropped.

7. Record Seals

Drug convictions in Nevada are usually sealable after a waiting period. The length of this wait depends on the specific crime category you were convicted of. Meanwhile, drug charges that get dismissed may be sealed right away.⁸

Drug Possession Conviction	Criminal Record Seal Waiting Period in Nevada
Misdemeanor	1 year after the case ends
Category E felony	2 years after the case ends
Category D felony, or Category B felony	5 years after the case ends
No conviction (dismissal)	Immediately

Learn about how to petition for a Nevada record seal.

8. Immigration Consequences

Any non-citizen can be deported from the U.S. for drug possession. The only exception is if the drug was 30 grams or less of marijuana.⁹

Immigrants facing drug charges are advised to hire an experienced attorney as soon as possible. Your attorney may be able to persuade the prosecutor to reduce or dismiss the charges. This in turn could take deportation off the table.

9. Related Drug Offenses

Possession for Sale

Drug possession with the intent to sell (NRS 453.337 & NRS 453.338) is a more serious crime than possession for personal use. It is always prosecuted as a felony in Nevada. Though you may be eligible for probation if it is your first offense.

Selling

Selling narcotics (NRS 453.321) is the second most serious drug crime under Nevada state law. It does not matter whether the drugs are being traded for cash, jewelry, or other items of value. However, if you have no prior convictions, you may be eligible for probation.

Manufacturing

Manufacturing drugs (NRS 453.322) is a serious Nevada felony. Merely possessing drug-making chemicals violates NRS 453.322 if you have the intention of using them to make drugs.

Trafficking

Possessing, making, transporting, or selling large quantities of Schedule I or II drugs is charged as trafficking in the state of Nevada. Drug trafficking is the most harshly punished drug crime in the state. However, if you help police investigate other cases, you might be able to avoid prison. Learn more about trafficking drugs (NRS 453.3385).

10. Hiring an Attorney

Having a criminal defense lawyer increases your odds of getting Nevada drug charges reduced or dismissed. A good law office can do a thorough investigation of the state’s case in search of every inconsistency and weakness. Prosecutors are usually more willing to negotiate when you have private counsel.

If you have been arrested or have questions about Nevada drug laws, we invite you to contact us. We may be able to get your Nevada possession charges lessened or even dismissed so your record remains clean.

Additional Reading

For more information on Nevada drug crimes, see our related articles:

• Can a felony drug possession charge be reduced to a misdemeanor in Nevada? – discussion of plea bargain possibilities in drug cases
• When is drug possession in Las Vegas a federal crime? – overview of when the feds have jurisdiction over possession cases
• DUI of drugs – an in-depth look at the Nevada crime of driving under the influence of drugs
• Is cocaine a felony in Nevada? – a deep dive into how cocaine crimes are prosecuted
• Good Samaritan Drug Overdose Act – a guide to how to report ODs without fearing arrest and prosecution

Are you struggling with substance abuse? You are not alone. Learn about Narcotics Anonymous. It is an international organization offering a twelve-step program to overcome addiction.

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