Massachusetts G.L.c. 94C, § 34: Unlawful Possession of Particular Controlled Substances, including Heroin and Marijuana

Massachusetts General Laws Chapter 94C, section 34 governs crimes involving the possession of certain controlled substances without a valid prescription for such substances.

It provides as follows:

“No person knowingly or intentionally shall possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the provisions of this chapter.”

For a conviction of a charge under this section, the government must prove the following elements beyond a reasonable doubt:

1. That the Defendant possessed a specified controlled substance, and that he was not authorized to do so.

Essential to the prosecution of a charge under this section is the element of possession. There are various ways in which the law finds that a person can possess something, this includes direct possession, constructive possession and joint possession.

For instance, a person obviously possesses something if it is under his direct physical control. However, the law may find that a person also possessed an item not in his actual physical custody if he (a) has knowledge of the object, (b) has the ability to exercise control over the object, either directly or through another, and (c) has the intent to exercise control over the object. Merely being present in the vicinity of an item, even if one knows about it, may not amount to possession of that item.

In order to be convicted under this section, it is essential that the Commonwealth must prove some form of possession beyond a reasonable doubt.

The penalties for possession charges vary depending on the type of controlled substance that the defendant is alleged to have possessed. Generally, a person convicted under this section may face a penalty of imprisonment for up to 1 year in the house of correction or a fine of not more than $1,000 or both; a person convicted of a subsequent offense under this section may be punished by imprisonment in the house of correction for not more than 2 years or by a fine of not more than $2,000 or both.

However, a person convicted under this section for possession of heroin, first offense, may face up to 2 years imprisonment in the house of correction and a fine of not more than $2,000 or both. For a second or subsequent conviction for possession of heroin, the potential penalty is imprisonment in state prison for not less than 2 ½ years and not more than 5 years or by a fine of not more than $5,000 and imprisonment in the house of correction for not more than 2 ½ years.

A person convicted under this section for possession of a Class E controlled substance may be punished by imprisonment in the house of correction for not more than 6 months or a find of $500 or both.

The statute however provides for opportunities for favorable dispositions, not amounting to convictions, for individuals charged under this section who have not previously been convicted of drug offenses or other felony offenses. This includes the opportunity to have these charges continued without a finding and have the record of such charges sealed by order of the court.

Experienced drug crimes attorneys will be able to craft solid defenses to possession cases, including challenges to the essential element of possession, as well as challenging these cases through motions to suppress evidence and motions to dismiss. Additionally, experienced drug crimes attorneys know how to achieve the best possible resolutions that often result in dismissals for these simple possession offenses.

If you or someone you know has been charged with possession of a controlled substance in Massachusetts, contact the Law Offices of Stephen Neyman, P.C. Attorney Neyman has multiple decades of experience defending those who have been accused of drug crimes in Boston and all throughout Massachusetts. He is an aggressive and smart attorney who is relentless in protecting the freedom of his clients. You can reach Attorney Neyman by calling 617-263-6800 or by sending him an email. He offers free and confidential initial consultations, which he will schedule at your convenience.