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What Makes a Drug Charge Aggravated?


Couple of bills and dangerous prohibited drugs confiscated.Aggravated drug crimes typically mean that you are facing a felony rather than a misdemeanor. With that comes longer prison sentences, higher fines, and long-term consequences of being branded as a “felon.”

It is illegal in New Mexico to possess certain substances, and some of those can include prescription medications when the prescription is not your own. The state imposes strict drug laws, and while most results in typical drug possession, there are instances where it can be charged as felony drug possession (or aggravated possession).

The Schedules of Drugs and What They Mean

Determining whether someone has committed a felony drug crime or misdemeanor will depend on the amount of the substance with them and the schedule of that substance. The law categorizes them into five schedules, based on their likelihood to cause addiction.

Schedule I – No Medical Use, Illegal, and High Potential for Abuse

A Schedule I substance is one that has no medical purpose and an extremely high potential for abuse. These can include everything from morphine to heroin and even marijuana under federal law. While states have legalized marijuana, if you are facing a federal charge, realize that the federal government does not recognize marijuana as legal. Therefore, if you were caught taking marijuana over state lines, even if you were going into a state that has legalized it, you can be charged with a crime.

Schedule II – High Potential for Abuse, but May Have a Medical Use

While these substances are highly addictive, they have used in medical treatments, such as oxycodone for pain management, morphine, opium, codeine, and fentanyl. A person cannot get these medications without a prescription, and these are heavily regulated.

Schedule III – Medically Used, but Not as Addictive as Schedule II

While these are addictive, the risk is not as high as Schedule II substances, and each of these has a medical purpose, including antidepressants, depressants, and ketamine.

Schedule IV – Low Risk for Abuse and Used for Medical Treatments

The risk for abuse is much lower with these medications, and they are frequently prescribed, such as diazepam and Xanax.

Schedule V – Very Low Risk for Abuse, and Easily Obtained

These drugs are not as heavily regulated, can be used for medical treatments, and in some instances are available over the counter. Some prescribed medications in this category include stimulants.

Factors Used to Determine If Felony Drug Crimes Are Necessary

Aside from the schedule, there are other factors used to determine whether you have committed a felony or aggravated drug crime. These include:

  1. The amount of the substance you had at the time of your arrest. No matter what schedule you are in, the amount of the drugs found on you will determine if you are facing a felony charge. Any time a person has a copious supply, more than one person could possibly consume for themselves, they are more likely to face felony charges than having a single prescription bottle. However, any amount of a Schedule I substance is a drug charge, and in some cases, it is an automatic felony, regardless of the amount.
  2. Any equipment with you proving that you had the intent to sell or distribute the drug at the time of your arrest. Small plastic baggies or other equipment indicating you were going to sell and distribute the drug rather than use it personally could result in an aggravated charge versus a misdemeanor.
  3. Your location at the time of your arrest. You will have enhanced penalties if you are found with these illegal substances in government buildings or on school property. For example, a teacher in possession of cocaine on a school campus would face a felony drug charge, regardless of the amount, and even more so if they were selling or distributing it on school grounds.
  4. Whether a minor was present at the time of the arrest. Drug possession is typically a misdemeanor, but it can become aggravated or a felony if you are in possession of that illegal substance while in the presence of a minor.

What Is the Penalty for Aggravated Drug Charges in New Mexico?

The penalty will depend on the circumstances above and the schedule of the substance you were arrested with. For example, if you have Schedule I – III, you will automatically spend up to one year in jail, but you could spend up to 18 months if you are in possession of a methamphetamine or other specified Schedule I substance.

If you have a Schedule I – III in a school zone, then you will face an automatic 18 months in prison and fine of up to $5,000. If you are in the possession of phencyclidine, also known as PCP, you face up to three years imprisonment.

Arrested for Drug Possession? Do Not Risk a Felony – Contact an Attorney Immediately

Drug charges are serious, and if you are facing a felony, it is even more so. A felony means that you are spending a minimum of one year in prison, and you will have a felony on your criminal record. With a felony comes limitations on employment options, housing, and even government aid. You will carry around the stigma of being a convicted felon, you will be unable to own or possess firearms, and nothing will quite ever return to that “normal” before it all happened.

Whether you are guilty, or you are being railroaded by law enforcement, do not take a plea and do not negotiate without a defense attorney that has experience handling state and federal drug crime charges. We have helped countless clients fight against both misdemeanor and felony drug charges, and we are ready to take on your case and make sure you get the aggressive representation you deserve.

To get started, reach out to the trusted legal team of New Mexico Criminal Law Offices today. Give us a call directly or contact us online to schedule a free case evaluation. If you want to learn more about our defense services, you can also reach out to us through our online contact form and someone will be in touch shortly.