What Counts As Drug Possession?

Possessing a controlled substance is a serious crime. It can lead to fines, imprisonment, probation, and other legal penalties. Even having a small amount of an illegal drug can destroy your reputation, family, and future.

Possession is a broad term involving multiple factors. The prosecutor can’t convict you of drug possession unless they prove all the elements of possession under state law. If you’ve been arrested for or charged with drug possession, you should know what “drug possession” means in South Carolina to prepare yourself for what’s ahead.


According to South Carolina code § 44-53-370(c), it is unlawful for a person to intentionally or knowingly possess a controlled substance unless they obtained it with a valid prescription order or directly from a practitioner acting in the course of their professional practice.

Controlled substances belong to different schedules depending on these factors:

  • The relative or actual potential for abuse
  • Risk to public health
  • Scientific evidence of the pharmacological effect of the substance
  • Duration, significance, and scope of abuse
  • Whether the drug has a recognized or accepted medical use
  • Potential for producing physiological or psychic dependence
  • Current and historic pattern of abuse
  • Whether the drug is an immediate precursor of an already controlled substance

Schedule I drugs are chemicals, drugs, or substances with a high potential for abuse and no accepted medical use, such as:

  • Marijuana
  • Heroin
  • Ecstasy
  • Lysergic acid diethylamide (LSD)

Schedule II drugs are drugs, substances, or chemicals with a high potential for abuse and potentially severe physical or psychological dependence, such as:

  • Fentanyl
  • Cocaine
  • Oxycodone
  • Methamphetamine

Schedule III drugs are substances, drugs, or chemicals with a moderate to low potential for psychological and physical dependence, such as:

  • Ketamine
  • Testosterone
  • Anabolic steroids
  • Tylenol with codeine

Schedule IV drugs are chemicals, substances, or drugs with a low risk of dependence and low potential for abuse, such as:

  • Ambien
  • Valium
  • Xanax
  • Tramadol

Schedule V drugs are drugs, chemicals, or substances with lower potential for abuse than Schedule IV and containing preparations with limited quantities of certain narcotics, such as:

  • Lomotil
  • Parapectolin
  • Motofen
  • Robitussin AC


“Possession of a controlled substance” includes various elements the prosecutor must show apply to your charges to prove guilt beyond a reasonable doubt.


If law enforcement finds drugs, it doesn’t necessarily mean you possessed them. You must have knowingly or intentionally possessed the controlled substance related to the offense.

Proving knowledge or intent is challenging. A conviction isn’t likely if the prosecution doesn’t have evidence that you intentionally had the drugs on you or knew they were there.

For example, you might drop your friend off at their home. As they leave the car, a zip lock bag containing marijuana falls out of their pocket. An officer might pull you over after and find the drugs in your back seat. Although the marijuana is in your vehicle, you did not know it was there and didn’t intentionally possess it.


Another element of drug possession a prosecutor must prove is that you were in possession of the drug. Disputing a possession charge can be challenging if you’re carrying prescription medication in someone else’s name or a bag of cocaine in your pocket.

However, there are two types of possession under state law – actual possession and constructive possession.

Actual possession means you have a controlled substance on your body. Typically there is no question whether someone was aware of drugs in their purse or pants pocket. They were likely in actual possession.

Constructive possession means there is reason to believe someone knew about the drug despite it not being on them. For example, if law enforcement finds a controlled substance in your bedroom while searching your home, you can be in constructive possession even if you’re standing outside during the search.

The drug you had in your possession must be a controlled substance for the prosecutor to prove you’re guilty of possession. That means a lab must test it to confirm what it is. Sometimes, the police arrest people carrying drugs because they look like illegal narcotics. However, they might be an over-the-counter medication or a valid prescription.


Marijuana isn’t legal in South Carolina for recreational or medical purposes. However, a doctor can prescribe various types of drugs to their patients for medical use. According to state law, you are not in possession of a controlled substance if you have a valid prescription for the drug you have on you or in your car or home.


A drug possession charge requires a solid criminal defense strategy. You should not handle your case alone.

Truslow & Truslow has over 50 years of experience representing our clients. We will protect your rights and fight for your future. Call us at ((803) 590-6688 for a confidential consultation with an experienced South Carolina drug possession defense attorney if you were arrested or charged with possession of a controlled substance.

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