I Was Caught With Drugs But Not Charged. What Do I Do?

07/30/202410 minute read

Being arrested is always stressful – but if you’ve been arrested and not charged with a crime, waiting in limbo might be even worse. You’ll put your entire life on hold as you worry what might happen next. Sometimes, drug possession charges will quickly be dismissed or you’ll be offered a plea deal. Other times, a gap between arrest and charges can be a sign the state is building a bigger case. Here’s what you need to know if you’ve been caught with drugs but not charged.

What Is Drug Possession?

According to Oklahoma law, “It shall be unlawful for any person knowingly or intentionally to possess a controlled dangerous substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner.” Controlled dangerous substances are categorized into Schedules I to IV and include the usual suspects, like heroin, cocaine, methamphetamine, and LSD, as well as common prescription drugs like oxycodone, Ambien, and diazepam. Over-the-counter drugs are not included.

The law also describes what it means to “possess” something. There are two types of possession under Oklahoma law:

Actual possession: You have direct physical control over the substance, for example, it’s in your hand or in your pocket.
Constructive possession: You have indirect control over the substance, meaning that you know it’s there and you have access to it.

Simply being near a controlled substance doesn’t mean you’re in possession of it. The state must also prove you knew it was there and you had the ability to retrieve it. If you’re in your car or home, especially if you’re by yourself, the courts will typically assume constructive possession. If you’re caught with drugs but not charged, it could be that the state is trying to prove you were in possession of them under the law.

Possession with Intent to Distribute

Under the law, it’s illegal to “to distribute, dispense, transport with intent to distribute or dispense, possess with intent to manufacture, distribute, or dispense, a controlled dangerous substance.” Unlike drug trafficking, there’s no specific amount of drugs that elevates a charge from simple possession to possession with intent to distribute. To prove you intended to distribute a drug, the state will look for the presence of evidence like:

Scales for weighing drugs
Plastic baggies and other small containers
Substances that are split up into smaller amounts
Substantial amounts of money

What About Marijuana?

In 2019, Oklahoma voters authorized the state’s medical marijuana program through State Question 788. Codified in Title 63, Section 420, any person with a medical marijuana license can legally:

Consume marijuana
Possess up to 3 ounces of marijuana on their person and 8 ounces in their residence
Possess six mature marijuana plants and six seedling plants
Possess 1 ounce of concentrated marijuana, 72 ounces of edible marijuana, and 72 ounces of topical marijuana

While medical marijuana patients usually won’t face possession charges, remember that driving or being in actual physical control of a vehicle while under the influence of marijuana can still lead to a DUI charge.

What’s the Punishment for Drug Possession?

Three years before medical marijuana, Oklahoma voters also passed State Question 780. This pioneering criminal justice reform bill eliminated predicate offenses for drug possession. That means it reclassified drug possession as a misdemeanor, no matter how many prior drug possession charges were on someone’s record.

However, in November 2023, the Oklahoma Legislature passed House Bill 2153, which adopts a “four strikes law” for drug possession. Under the latest law:

The first drug possession conviction is a misdemeanor, punishable by up to 1 year in jail or a $1,000 fine.
A second conviction within ten years is still a misdemeanor, but the court can order drug treatment.
A third conviction within ten years is also still a misdemeanor, but has a minimum sentence of 30 days in jail and a possibility of court-ordered drug treatment.
A fourth conviction is charged as a felony punishable by a minimum of 1 year in jail. However, if you plead no contest or guilty and complete a diversion program, it can be changed to a misdemeanor.

Possession with intent to distribute is a more serious crime. It’s charged as a felony, and punishment is based on the type of drug involved:

Schedule I and II: Up to 7 years in prison and a fine up to $100,000 for a first conviction. Up to 14 years in prison for a second conviction, and 20 for a third.
Schedules III, IV, and V: Up to 5 years in prison and a fine up to $20,000. Up to 10 years in prison for a second conviction, and 15 for a third.

How Long Does the State Have to File Charges?

When you’re caught with drugs but not charged, you might think you’re getting out of the harsh punishments above. But in Oklahoma, the statute of limitations for both felony and misdemeanor drug crimes is 3 years. That means the state has 3 years from the date the crime occurred to charge you. If you leave the state, the statute of limitations pauses – the amount of time you spend outside the state doesn’t count toward the 3 years. It restarts when you return.

Why Haven’t You Been Charged Yet?

There are a few different reasons you might have been caught with drugs but not charged. An experienced attorney can help you sort it all out, but you can start here.

The State Is Still Investigating

This is the most common reason people are caught with drugs but not charged – at least not yet. The 3-year statute of limitations gives the state time to investigate your case. They’ll need to establish that they had probable cause to search you and find the drugs. They’ll need to have the drugs analyzed at a lab, and keep track of the chain of custody, which can take weeks or months.

The state could also be investigating if they can charge you with a stronger crime, like possession with intent to distribute, drug trafficking, or conspiracy to traffick drugs. In a conspiracy case, the state needs to show an agreement between two or more parties and an overt act performed subsequent to the formation of the agreement. There’s a lot that could be going on behind the scenes, so don’t wait to contact a lawyer.

There’s a Problem With the Evidence

As with any criminal case, the state needs to be able to prove you committed the crime beyond a reasonable doubt. That might seem straightforward with a drug possession case, but if you were in a car or home with other people, they could have trouble proving constructive possession.

They’ll also need to prove they followed proper procedure. If you were searched during a traffic stop, the police need probable cause to pull you over. If police found drugs while arresting you for something else, they need probable cause for the arrest. Without probable cause, the evidence (which is usually the drugs themselves) can be thrown out. Even if they claim they saw the drugs in “plain view,” which gives them the right to search you further, an attorney can question this claim. And if they don’t have enough evidence, the case won’t move forward.

What to Do If You’ve Been Caught With Drugs But Not Charged

If you’ve been caught with drugs, don’t ignore it. It’s likely that you’ll eventually be charged, and not being prepared will only make your situation worse. Here’s what to do:

If you’re detained, don’t give the police any information beyond your name and age. Oklahoma is not a “stop and identify” state, although you do have to provide ID if you’re formally arrested.
Retain an attorney if you’re arrested, even if you haven’t been charged. A defense attorney with experience in drug crimes can immediately get to work poking holes in the state’s evidence.
Don’t answer any questions until your attorney is present. They can help you navigate the process, defend against the charges or negotiate a plea deal, like a deferred sentence.
Be respectful when dealing with law enforcement. Calmly assert your rights and refuse to answer questions, but don’t be combative. There’s no reason to make the situation worse.

The Bottom Line

If you’ve been caught with drugs but not charged, your attorney can push the state to uphold your Constitutional rights by dismissing the charges or accepting a plea deal. And if you are eventually charged, they can help you get the best outcome. The Khalaf Law Firm has decades of experience defending against drug possession charges, and we know what it takes to win. Contact us today for a free evaluation so you can start moving forward.