Our criminal defense attorneys have over 40 years of combined experience defending people charged with crimes relating to drugs such as possession of marijuana. Although other states have legalized marijuana, it’s still illegal in South Carolina except for some possible upcoming legislation that could allow certain medical use. In this article, we give a general explanation of the laws relating to marijuana charges.
What is Simple Possession of Marijuana in South Carolina?
If a person is caught with 28 grams or less of marijuana, that person can be charged with simple possession. If convicted, the person can be fined or receive up to 30 days in jail. Simple possession is a misdemeanor that is prosecuted in Municipal or Magistrate’s court. For a second or greater offense, the person can be charged with simple possession 2nd, still a misdemeanor, but the penalty can be up to 1 year in jail, a fine, or both. To be guilty of possessing a drug, a person must be found to have actual possession or constructive possession of the drug:
- Actual possession is when drugs are in the physical custody of the person. Examples of actual possession include being in someone’s hand, in their pocket, in their sock, in a purse or backpack being carried by the person, or even in someone’s underwear.
- Constructive possession means that a person has “dominion and control” over the drugs or the premises where the drugs are found. Constructive possession can be in your dresser drawer, in a cabinet in the kitchen, or in your car’s glove box, depending on the facts of the case.
Also, two people can be in “joint possession” of a substance. Some people think that if drugs are found in a car, as long as someone claims the drugs, everyone else is safe. This isn’t true. Depending on the facts of the case, the police can charge multiple people with possession of the same substance.
What is Possession With Intent to Distribute Marijuana (PWID) in South Carolina?
A person who possesses marijuana with the intent of selling or distributing it can be charged with possession with intent to distribute (PWID). Evidence of the intent to distribute can be the marijuana being held in different bags or containers, the presence of scales, or text messages or other communications showing an intent to sell. Also, if a person has over 28 grams, even if all stored in one bag, it can be inferred that the person had the intent to distribute.
If convicted of a first offense PWID, a person is guilty of a felony and can receive a fine of up to $5,000, be jailed for up to 5 years, or both for a first drug offense. For a second offense, the penalty can be up to 10 years, or a fine of up to $10,000, or both. For a third or greater offense, the person must receive at least 5 years, but not more than 20 years, or be fined up to $20,000, or both.
What is Distribution of Marijuana in South Carolina?
A person who actually sells or distributes marijuana to another can be charged with distribution. Distribution carries the same penalties as PWID.
What is Manufacture of Marijuana in South Carolina?
A person who grows marijuana, or who otherwise produces, prepares, propagates, compounds, converts, or processes marijuana, may be charged with manufacturing. Manufacture carries the same penalties as PWID.
What is Trafficking Marijuana in South Carolina?
A person possessing ten pounds or more of marijuana can be charged with trafficking. If convicted, the penalty depends on the amount:
- If more than 10 pounds but less than 100 pounds, the person can receive a sentence of no less than 1 year, up to 10 years, and be fined $10,000 for a first drug offense. For a second offense, the person must receive no less than 5 years, no more than 20 years, and a fine of $15,000. For a third or greater offense, the person will receive a mandatory sentence of 25 years and a fine of $25,000.
- If over 100 pounds but less than 2,000 pounds, or between 100 and 1,000 plants regardless of weight, the person must receive a mandatory sentence of 25 years and a fine of $25,000.
- If over 2,000 pounds but less than 10,000 pounds, or between 1,000 and 10,000 plants regardless of weight, the person must receive a mandatory sentence of 25 years and a fine of $50,000.
- If 10,000 pounds or more, or 10,000 or more plants regardless of weight, the person must receive between 25 and 30 years and a fine of $200,000.
What is Possession of Drug Paraphernalia in South Carolina?
Drug paraphernalia is defined as basically anything used for ingesting, smoking, administering, manufacturing, or preparing a controlled substance. Common forms of marijuana paraphernalia are bowls, pipes, water pipes, bongs, carburetion tubes, smoking masks, roach clips, separation gins used for cleaning marijuana, vaporizers, electric pipes, chilams, or hookahs.
A person is convicted of possession of drug paraphernalia is subject to a civil fine. Despite this offense being civil and not criminal in nature, we still sometimes see SLED put the charge on people’s arrest records. There is another paraphernalia-type charge pertaining to hypodermic needles, and this charge is criminal in nature. The code for the needle charge is sometimes confused with the civil paraphernalia charge. Having a paraphernalia charge on your record can be confusing and sometimes difficult to remove. We caution people to be careful if they ever intend to just pay the fine on a paraphernalia charge.
What are Crimes of Enhancement in South Carolina?
Marijuana offenses, like most other drug offenses, are called “crimes of enhancement.” This means that if someone is charged with PWID, for example, and that person already has a conviction for a previous drug offense, then the charge can be PWID 2nd offense, which carries greater penalties than a first offense. What many people don’t realize is that even if the previous conviction is for a completely different charge or a completely different drug, it can still enhance the later offense. So, if a person is convicted of something small, such as simple possession of marijuana, and the person is later charged with PWID, then the charge can be PWID 2nd offense. This is all the more reason to hire a criminal defense lawyer to contest a drug charge no matter how small the charge.
Defending a Marijuana Charge in South Carolina
When we are hired to defend a marijuana charge or other drug charge, there are several things that are done in every case. First, we gather all of the evidence. Evidence can include the police report, the SLED lab analysis, the chain of custody reports, dispatch records from the police, statements of witnesses, statements of co-defendants, audio or video of the arrest if it exists, and even your criminal record.
We will analyze the case to determine whether there was probable cause to stop you and whether any searches and seizures are constitutional. Sometimes, we can show that the police had no basis to stop and search you. Sometimes, we can show a defect in the search warrant or in how it was carried out. The lawyers at Futeral & Nelson consider your case unique, and we apply the laws to your specific facts.
We analyze the chain of custody and the lab report. While the officer would have probably done a “field test” and presumptively found the substance to be marijuana, it still has to be tested by an expert in a lab. Sometimes, the chain of custody becomes defective. Sometimes, the drugs get mixed with other drugs or lost. Sometimes, the lab tech tests the wrong drugs or commits some error in the testing. Before advising you of whether to accept a plea offer, we will give you our opinion on whether the chain of custody and tests are legit.
There are two main goals in nearly every criminal defense case: to keep you out of jail and to keep your record as clean as possible. We will explore every option in negotiating with the prosecutor to try to either have the charges dismissed or to get you the best deal we can. Ultimately, if necessary, we will try the case. Look at some of the ways to avoid jail and conviction by clicking here.
Get Help From an Experienced Charleston Criminal Lawyer
If you were charged with simple possession of marijuana (or any other drug), possession with intent to distribute (PWID), distribution, trafficking, or manufacturing marijuana in Charleston, Dorchester, or Berkeley County, schedule an appointment with one of our attorneys to hear how these laws apply to your particular case. We do not charge a consultation fee for criminal cases.