Arkansas Drug Crimes & Classifications

Posted by on July 30, 2013 in Blog, Criminal Law

The Arkansas Legislature recently updated the vast majority of the so called “drug crimes” in the state, which has resulted in some confusion as to how the new laws are applied.  This article will briefly touch on the new drug laws in Arkansas, but is not meant to go into any great detail, because these types of cases are often very fact-specific.  If you are facing pending criminal charges related to controlled substances in Arkansas, I would urge you to hire an attorney that is up to date on the new laws and has experience trying these types of cases.

To start with, drug charges can be brought for possessing, delivering, manufacturing, or possessing with the intent to deliver among other things.  Let’s look at those a little closer — the first is possession; which can be actual or constructive.  Actual possession is when an individual has the contraband on their person (i.e. in your pocket).  Constructive possession is when the individual is not connected directly to the contraband but it is where the individual “is in a position to exercise dominion or control over a thing.” U.S. v. Holland, 445 F. 2d 701, 703 (D.C. Cir. 1971).  You see this issue arise frequently in automobile stop cases (something is found in the glove box, trunk, in a passenger’s bag, etc.).

Delivery is the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value.  Ark. Code Ann. § 5-64-101(7).

Manufacture includes the “production, preparation, propagation, compounding, conversion, or processing of a controlled substance” which encompasses cooking, cutting, cultivating, harvesting, and packaging of controlled substances. Ark Code Ann § 5-64-101(16).

There are two major issues to consider when discussing potential drug charges in Arkansas.  The first is the aggregate amount of the controlled substance in question, and the second is what schedule the controlled substance falls on.  There are obviously higher potential penalties for larger amounts of drugs, just as there are harsher potential penalties for highly addictive or so-called “harder” drugs.  For example, a small amount of marijuana (less than four ounces) is usually charged as a misdemeanor.  Whereas even as little as 2 grams of methamphetamine is a class D felony in Arkansas.  When we talk about the classifications of controlled substances in Arkansas, we often refer to the “schedule” that they are on.  This “schedule” of controlled substances is promulgated by the State, and describes the various classes of controlled substances.

Schedule I are substances with “high potential for abuse,” with no “accepted medical use in treatment.”  Substances in this class include: LSD, ecstasy, heroin, and peyote.  Ark. Code Ann. § 5-64-203.  Being some of the most addictive substances, crimes involving Schedule I narcotics are far more serious and carry higher penalties.  Schedule II substances also have a high potential for abuse, but have currently accepted medical use in treatment, and the abuse of which may lead to sever psychic or physical dependence.  Ark. Code § 5-64-205.  Schedule II narcotics include but are not limited to: Dilaudid, methadone, codeine, oxycodone, Ritalin, opium, and morphine. Crimes involving Schedule II narcotics generally are grouped with Schedule I crimes and carry some of the highest penalties in the State.  Possession with Intent, Delivery, and Manufacturing charges for Schedule I or II substances range from a Class C felony to a Class A felony.  By way of example, a Class C felony carries a sentencing range of 3-10 years in prison and up to $10,000 in fines, and a Class A felony is 6-30 years and up to $15,000 in fines.

Schedule III substances have less potential for abuse than Schedule I and II narcotics, have a currently accepted medical use, and may cause moderate to low physical dependence or high psychological dependence. Ark. Code Ann. § 5-64-207.  Schedule III narcotics include but are not limited to: Didrex; phendimetrazine, ketamine, and some anabolic steroids.  Manufacture of a Schedule III controlled substance can range from a Class C felony to a Class A felony, depending on the amount.  Potential possession punishment can range from a Class A misdemeanor for under two grams to a Class B felony for 200 to 400 grams; while possession with intent can amount to a class A felony.

Schedule IV substances have low potential for abuse relative to higher levels, have a currently accepted medical use, and abuse may lead to limited dependence.  Ark. Code Ann. § 5-64-209.  These substances include but are not limited to the following:  Xanax, Klonopin, Valium, Ativan, and Halcion.

Schedule V substances have low potential for abuse, have a currently accepted medical use, and have limited dependence.  Ark. Code Ann. § 5-64-211.  These substances include but are not limited to: ephedrine combination products, pseudoephedrine, and phenylpropanolamine. Possession of a Schedule IV or V can range from a Class A misdemeanor for less than twenty-eight grams to a Class A felony for 400 to 800 grams.  Delivery or Manufacture charges can range from a D felony to an A felony.

Schedule VI substances do not have a current medical use, lack accepted safety for use even under medical supervision, have high dependence, and are considered a definite risk to public health.  Ark. Code Ann. § 5-64-214.  These substances include marijuana, salvia, and synthetic marijuanas (often referred to as K2, Spice, etc.). Possession and Manufacturing charges range from a Class A misdemeanor for less than four ounces up to a Class A felony for more than 100 pounds.

Methamphetamine and cocaine stand in their own categories. Delivery of methamphetamine or cocaine can range from a Class C felony to a Class Y felony, depending on the amount. Possession with the intent to sell either substance can result in a Class C felony to a Class Y felony.

Bear in mind, these classifications and penalties are subject to change at any time.  For example, there is a big push right now to carve out a medical necessity exception for possession of small amounts of marijuana in Arkansas.  And many cities and localities are struggling to keep up with regulations for new substances like synthetic cannabinoids.

Last but not least, I have not touched on the subject of possession of drug paraphernalia, which really deserves a blog entry of its own.  Be aware that under the new statutes, the old crime of possession of drug paraphernalia now has both a misdemeanor as well as a felony element in Arkansas, and it takes very little to get charged with the felony version, depending on the facts of your case.

Standard attorney disclaimer:  Nothing contained in this post is intended to be construed as legal advice.  Unless otherwise stated, no attorney-client relationship exists between the author and the reader.  Past performance should not create an expectation of future results.  You should consult an attorney for advice regarding your individual situation.  While I invite you to contact my office and welcome your calls, letters and electronic mail, simply contacting my office does not create an attorney-client relationship.  Please do not send any confidential information to my office until such time as an attorney-client relationship has been established.