Under South Carolina law, simple possession of marijuana or hashish is the unlawful possession of twenty-eight grams (one ounce) or less of marijuana, or ten grams or less of hashish S.C. Code Ann. § 44-53-370. It is classified as a misdemeanor offense for a first or second conviction, with escalating penalties and classifications for subsequent offenses S.C. Code Ann. § 44-53-370. Possession of amounts exceeding these thresholds creates a prima facie presumption of an intent to distribute S.C. Code Ann. § 44-53-370.
Elements of the Offense
To secure a conviction for simple possession of marijuana, the state must establish that the accused had both the power (actual or constructive control) and the intent to control the disposition or use of the substance State v. Lane, 271 S.C. 68.
Dominion and Control: The state must prove the defendant had actual physical control or constructive control, which occurs when the defendant has dominion and control over either the drugs or the premises where the drugs are found State v. Lane, 271 S.C. 68, State v. Franks, 376 S.C. 621. Mere presence at the scene where drugs are found is insufficient on its own to establish possession State v. Franks, 376 S.C. 621.
Intent and Knowledge: The defendant must possess the intent to control the drug's disposition or use State v. Lane, 271 S.C. 68. While actual knowledge of the drug's physical presence is strong evidence of intent, knowledge can also be inferred from the surrounding facts and circumstances State v. Lane, 271 S.C. 68.
Statutory Penalties and Sentencing Structure
The penalties for simple possession of marijuana or hashish under South Carolina law are structured based on the offender's prior criminal history:
First Offense: The offense is a misdemeanor punishable by a term of imprisonment of not more than thirty days, or a fine of not less than $100 nor more than $200 S.C. Code Ann. § 44-53-370, South Carolina Department of Revenue, Petitioner, , v. , Psparum, LLC, d/b/a Discount Tobacco, Respondent., 2024 SC ALJ LEXIS 290, Docket No. 24-ALJ-17-0175-CC. A first-time offender may be permitted to enter a pretrial intervention program S.C. Code Ann. § 44-53-370. Alternatively, with the approval of the circuit solicitor, a magistrate or municipal judge may grant a conditional discharge, and may require attendance at an approved drug abuse program as part of the sentence S.C. Code Ann. § 44-53-370.
Second Offense: The offense remains a misdemeanor, but the penalties increase to imprisonment for not more than one year, a fine of not less than $200 nor more than $1,000, or both S.C. Code Ann. § 44-53-370. For both first and second offenses, a court may suspend the sentence and grant probation, and the offender remains eligible for parole, supervised furlough, community supervision, work release, and various detention credits S.C. Code Ann. § 44-53-370.
Third or Subsequent Offense: The offender is guilty of a felony and, upon conviction, must be imprisoned for not more than fifteen years, fined not more than $10,000, or both S.C. Code Ann. § 44-53-370.
Jurisdiction and Procedure
Magistrates and municipal summary courts have jurisdiction over first-offense simple possession charges because the statutory penalty falls within their jurisdictional limits Administrative Determination Document, 2020 S.C. AG LEXIS 67, [NO NUMBER IN ORIGINAL], [NO NUMBER IN ORIGINAL]. Summary courts maintain either concurrent or exclusive jurisdiction over these cases, and municipal judges or magistrates are authorized to administer conditional discharges S.C. Code Ann. § 44-53-370, Administrative Determination Document, 2020 S.C. AG LEXIS 67, [NO NUMBER IN ORIGINAL], [NO NUMBER IN ORIGINAL].
Procedurally, simple possession is recognized as a lesser-included offense of possession with intent to distribute State v. Adams, 291 S.C. 132. A criminal defendant is entitled to a jury instruction on the lesser-included offense of simple possession if there is evidence from which a jury could infer the lesser offense was committed, such as when the drugs recovered weigh less than the statutory thresholds that trigger a presumption of intent to distribute State v. Adams, 291 S.C. 132.
Legal Characterization and Civil Impact
Under South Carolina precedent, simple possession of marijuana is not considered a crime of moral turpitude State v. Harvey, 275 S.C. 225, State v. Bolden, 303 S.C. 41. Consequently, a witness cannot be impeached using a prior conviction for simple possession of marijuana State v. Harvey, 275 S.C. 225. This distinguishes it from the simple possession of other controlled substances, such as cocaine, which is legally classified as a crime of moral turpitude State v. Bolden, 303 S.C. 41.
Local Municipal Variations
Local municipal ordinances within South Carolina mirror state law but impose localized jurisdictional rules:
Moncks Corner: Municipal ordinances make it unlawful to knowingly or intentionally possess any form or amount of marijuana or hashish within corporate limits or on personal property unless pursuant to a valid prescription Moncks Corner, South Carolina Code of Ordinances Sec. 20-2. Possession of 28 grams or less of marijuana, or 10 grams or less of hashish, is triable in the municipal court as a misdemeanor Moncks Corner, South Carolina Code of Ordinances Sec. 20-2.
Isle of Palms: It is unlawful to knowingly or intentionally possess marijuana or its derivatives within the municipality without a valid prescription, with violations prosecuted as municipal misdemeanors Isle of Palms, South Carolina Code of Ordinances Sec. 9-4-5.
Simple possession of marijuana or hashish in South Carolina is defined by possessing twenty-eight grams or less of marijuana, or ten grams or less of hashish. The offense requires the state to prove the defendant exercised actual or constructive dominion and control over the substance with the intent to control its use or disposition. While classified as a misdemeanor for the first two offenses, subsequent convictions escalate to a felony. Finally, South Carolina courts explicitly hold that simple possession of marijuana is not a crime of moral turpitude, protecting defendants from having such convictions used for character impeachment in legal proceedings.
Elements
To establish the offense of simple possession of marijuana or hashish, the prosecution must prove the following elements:
Possession: The defendant had actual or constructive possession of the substance State v. Brown, 267 S.C. 311, State v. Stanley, 365 S.C. 24. Actual possession occurs when the substance is in the physical custody of the defendant State v. Stanley, 365 S.C. 24. Constructive possession requires showing that the defendant had dominion and control, or the right to exercise dominion and control, over either the substance or the premises where it was found State v. Brown, 267 S.C. 311, State v. Stanley, 365 S.C. 24.
Knowledge: The defendant must have knowingly or intentionally possessed the substance with knowledge of its presence State v. Brown, 267 S.C. 311, Moncks Corner, South Carolina Code of Ordinances Sec. 20-2.
Substance and Weight: The substance must be marijuana or hashish, in an amount of 28 grams (one ounce) or less of marijuana, or 10 grams or less of hashish S.C. Code Ann. § 44-53-370. Possession of these threshold amounts (more than 28 grams of marijuana or more than 10 grams of hashish) serves as prima facie evidence of an intent to distribute S.C. Code Ann. § 44-53-370.
Defenses
Mere Presence: A defendant’s mere presence in the vicinity of the marijuana or where it is found is insufficient on its own to establish constructive possession State v. Stanley, 365 S.C. 24.
Lack of Dominion, Control, or Knowledge: Showing that an individual was merely a passenger in a vehicle or a visitor in a home where marijuana was found, without evidence of control over the premises, ownership of the vehicle, or knowledge of the substance's presence, defeats constructive possession State v. Brown, 267 S.C. 311.
Burden-Shifting Defenses: The prosecution must prove constructive possession beyond a reasonable doubt; requiring a defendant to disprove possession of items found in a dwelling they control impermissibly shifts the burden of proof to the defense State v. Adams, 291 S.C. 132.
Valid Prescription: Under specific local ordinances, such as in the town of Moncks Corner, possessing marijuana is not unlawful if it was obtained directly from or pursuant to a valid prescription or order of a practitioner acting in the course of professional practice Moncks Corner, South Carolina Code of Ordinances Sec. 20-2.
Penalties
First Offense: Guilty of a misdemeanor and, upon conviction, must be imprisoned for not more than 30 days or fined not less than $100 nor more than $200 S.C. Code Ann. § 44-53-370.
Alternative Dispositions: Conditional discharge may be granted by a magistrate or municipal judge upon approval by the circuit solicitor S.C. Code Ann. § 44-53-370. Eligible defendants may also be permitted to enter a pretrial intervention program or be required to attend an approved drug abuse program S.C. Code Ann. § 44-53-370.
Second or Subsequent Offense: Guilty of a misdemeanor and, upon conviction, must be imprisoned for not more than one year, fined not less than $200 nor more than $1,000, or both S.C. Code Ann. § 44-53-370. The court may suspend the sentence and grant probation S.C. Code Ann. § 44-53-370.
Note on Local Ordinances: Local municipalities may try simple possession offenses in municipal courts, but they cannot enact ordinances that set aside or alter state-mandated criminal penalties (such as denying the option of a fine and imposing mandatory jail time) Moncks Corner, South Carolina Code of Ordinances Sec. 20-2, City of N. Charleston v. Harper, 306 S.C. 153
Under South Carolina law, marijuana offenses are categorized based on the quantity of the substance involved, ranging from simple possession of small amounts to major trafficking offenses. South Carolina strictly regulates marijuana, drawing clear lines between minor possession and major trafficking operations. Simple possession of small quantities is treated as a misdemeanor, offering opportunities for conditional discharges or diversion programs. In contrast, possessing larger quantities triggers legal presumptions of an intent to distribute, and reaching the ten-pound threshold subjects defendants to severe felony trafficking charges with mandatory minimum prison sentences that cannot be suspended. Effectively defending against these charges typically relies on challenging the prosecution's evidence of constructive possession, knowledge, or intent.
Criminal defense in South Carolina is technical and detail-driven. Small facts often make the biggest difference.
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