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  5. A Sweeping Change in The Law: Today Illicit Drug Use Became the Same as Drug Possession

A Sweeping Change in The Law: Today Illicit Drug Use Became the Same as Drug Possession

On Behalf of Dixon & Moseley, P.C. | Aug 9, 2018 | Criminal Appeals, Criminal Law

On Wednesday, August 8, 2018, a decision1 was handed down by the Indiana Court of Appeals that is poised to dramatically increase the number of drug charges and convictions. This is alarming since the headlines of Indiana’s news stories continually recount the State’s “opioid crisis”. At the same time, statistics reflect county jails and Indiana’s prisons are “full” of inmates with drug convictions, at a significant burden to the taxpayer. This stands in contrast with compelling arguments and scientific evidence that other than stopping violence, drug issues are best dealt within the mental health system–not the penal system. Before this decision, basic drug charges and convictions–that fill our courts and jails/prisons–were based on drug (and/or drug-laden paraphernalia) possession, not mere use. That changed? This blog explores the Crittenden case—a game changer—that allows illicit drug use (it is not criminal) to essentially rely on the same evidence for the crime of drug possession (this is criminal).

In Crittenden, his girlfriend called 911 when she found him unresponsive with blue lips. After the emergency medical services arrived, Crittenden woke up and told medics he had used heroin or cocaine shortly before they were called. Crittenden showed clear signs of a drug overdose. The police also arrived on the scene and learned of situation. Crittenden was then charged with a Level 6 felony for possession of a narcotic drug. However, and again, use and of an illicit drug is not illegal. Nevertheless, at trial, the judge found Crittenden guilty of possession because of his statement to medics he used heroine or meth and evidence signs of overdose. No illegal drug was found the could support Crittenden’s possession of drugs.

To this point in time, the Indiana Supreme Court has held that the State is not required to introduce into evidence to subject contraband (illegal drug) to obtain a conviction for possession. The Crittenden case appears to go further based on properly applying the Legislature’s penal law; and it means that if you make a statement to medical personnel responding to your emergency that you may have used an illegal drug, and you have signs and symptoms of consistent with an overdose, it, or similar facts, inferentially support you had to have possessed the drug to consume it. Therefore, you have committed the crime of illegal possession of narcotics.

Crittenden’s defense was that possession means evidence of possession not mere evidence of use and overdose. Further, Crittenden argued that such a lax application of the law on possession equated consumption and use with possession and violated public policy because it would discourage people from seeking medical care. The Court of Appeals rejected this proposition and directed public-policy arguments to the lawmakers (Legislators) who make the laws the judiciary enforces and applies. With this, the Court of Appeals affirmed Crittenden’s conviction of Level 6 felony possession of narcotics.

This case may wind up being reviewed by the Indiana Supreme Court and re-decided. However, as of today, the Crittenden case appears to go one step further and blur or eliminate the line between illicit drug use (not illegal) and possession of illegal drugs. In legal analysis, the illegal drug use inferentially supports possession and any additional facts, including those made to a medical care provider, support a criminal charge and conviction.

This case has the potential to dramatically increase the number of charges and convictions for illegal drug possession and raises numerous legal questions; for instance, “Does the police officer who administers Narcan to an individual s/he responds to on an emergency call, then have to Mirandize the “victim” upon returning to consciousness or arrest them if they survive and relay to the officer they saved their life from their meth overdose?” Who knows? Know currently there is no answer.

Knowing the status of developments in the law is the key to avoiding criminal or civil liability and part of being an engaged citizenry in our participatory system of government. Bluntly, this information may keep you from unwittingly committing or admitting to a crime, being charged, convicted, and imprisoned. This blog post on a key new case was written by attorneys at Dixon & Moseley, P.C. who handle criminal defense cases throughout the state. This blog is written for educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.

  • Crittenden v. State, 18A-CR-206 (August 8, 2018).
  • What Orders Can Be Appealed in Indiana? A Guide to Final Judgments, Interlocutory Appeals, and Appellate Rights (2026)

    On Behalf of Dixon & Moseley, P.C. | Aug 5, 2026 | Firm News

    An Indiana appellate lawyer's guide to determining whether a trial court order can be appealed and when appellate review may be available. Quick Answer: What Orders Can Be Appealed in Indiana? Not every unfavorable court ruling can be appealed immediately. In Indiana,...

    How Many Days Do You Have to Appeal in Indiana? (2026)

    On Behalf of Dixon & Moseley, P.C. | Jul 15, 2026 | Firm News

    An Indiana appellate lawyer’s guide to Notice of Appeal deadlines, Motions to Correct Error, interlocutory appeals, and common timing mistakes. Quick Answer: How Many Days Do You Have to Appeal a Case in Indiana? In most Indiana appeals from a final judgment, the...

    How to Appeal a Case in Indiana: Step-by-Step Guide, Deadlines, Costs, and Common Mistakes (2026)

    On Behalf of Dixon & Moseley, P.C. | Jul 9, 2026 | Uncategorized

    A practical Indiana appellate lawyer’s guide to Notice of Appeal deadlines, appealable orders, the appellate record, briefing, oral argument, rehearing, and transfer to the Indiana Supreme Court. If you lost a civil case in Indiana, you may wonder whether the trial...

    Common Grounds for Appeal in Indiana Civil Cases (Complete Guide)

    On Behalf of Dixon & Moseley, P.C. | Jul 1, 2026 | Uncategorized

    When a civil case does not go your way in an Indiana trial court, an appeal may provide a path to reversal, but only if certain legal errors occurred. Indiana appellate courts do not retry cases or reweigh evidence. Instead, they review whether the trial court...

    When Is Parental Consent NOT Required for Adoption in Indiana? (2026 Guide)

    On Behalf of Dixon & Moseley, P.C. | Jun 25, 2026 | Uncategorized

    Adoption in Indiana typically requires the consent of a child’s biological parents. However, Indiana law provides several important exceptions where a court may allow an adoption to proceed without a parent’s consent. Understanding these exceptions is critical;...

    Failure to Object: When Is an Issue Waived?

    On Behalf of Dixon & Moseley, P.C. | Jun 9, 2026 | Uncategorized

    An Indiana Litigation Guide for Preserving Error on Appeal In Indiana litigation, one of the most common mistakes a trial lawyer can make is failing to object at the right time and in the right manner. The rule is simple but unforgiving: if you do not properly object, you may waive the issue for appeal. An objection must be timely…

    Waiver on Appeal: The #1 Reason Appeals Lose in Indiana

    On Behalf of Dixon & Moseley, P.C. | Jun 2, 2026 | Uncategorized

    In Indiana appellate practice, many appeals do not fail because the underlying issue lacked merit. They fail because the issue was waived. In plain terms, waiver means the appellate court will not decide an argument because it was not properly preserved in the trial court, properly supported on appeal, or properly presented under the Indiana Rules of Appellate Procedure. Common…

    How to Preserve Error for Appeal in Indiana

    On Behalf of Dixon & Moseley, P.C. | May 28, 2026 | Uncategorized

    Executive Summary There are several things that an attorney can do to ensure that an error is preserved for appeal. Making timely and specific objections and obtaining an explicit ruling from the judge on such objections can ensure that a matter is preserved. If evidence is excluded, the attorney should make offers of proof through questioning the witness outside of…

    Can a mother legally deny parenting time to an unmarried father?

    On Behalf of Dixon & Moseley, P.C. | May 10, 2026 | Uncategorized

    The answer depends on several important legal factors, including paternity, custody orders, and the best interests of the child. An unmarried mother has sole legal custody in Indiana unless a court orders otherwise. An unmarried father does not have enforceable rights until paternity is established by either signing a paternity affidavit or filing a paternity action in court. If paternity…

    What Happens to the House in an Indiana Divorce?

    On Behalf of Dixon & Moseley, P.C. | Apr 23, 2026 | Uncategorized

    Executive Summary A house is considered marital property if it is owned by one or both spouses, even if it was acquired before the marriage. Indiana law presumes that a 50/50 division of marital property is fair, but this presumption can be rebutted by a number of factors. As for the house specifically, the court may award the house to…

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    • What Orders Can Be Appealed in Indiana? A Guide to Final Judgments, Interlocutory Appeals, and Appellate Rights (2026)
    • How Many Days Do You Have to Appeal in Indiana? (2026)
    • How to Appeal a Case in Indiana: Step-by-Step Guide, Deadlines, Costs, and Common Mistakes (2026)
    • Common Grounds for Appeal in Indiana Civil Cases (Complete Guide)
    • When Is Parental Consent NOT Required for Adoption in Indiana? (2026 Guide)

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