Under federal law, the illegal possession of a controlled substance with the intent to sell or distribute it is a serious offense. To fully understand this crime, it helps to break it into two parts:
Illegal possession of the drugs
Intent to distribute them
Both elements must be met to commit the federal offense of "possession with the intent to distribute."
This article will address the elements of this crime under federal and state law. It will also highlight potential penalties and legal defenses.
Illegal Possession of Drugs
The prosecutor must first establish that the defendant engaged in a knowing and illegal possession or use of a controlled substance. The legality of possession or use relates to where the drug falls in the schedules under the Controlled Substances Act (CSA) and whether the defendant has any legal right to have the drug.
Drugs in Schedule I, such as heroin and LSD, are illegal to have in any quantity. There is no accepted medical use. The defendant can't have a valid prescription. Drugs that fall in Schedules II through V of the CSA all have some legitimate medical use. As a result, the state must show that the defendant had no right to have the drug in question. This might be easy when the drug is methamphetamine or cocaine. But, it could require some investigation if the drug was a prescribed pain medication like oxycodone or hydrocodone. When the drug is cannabis, state and federal law may conflict.
Law enforcement will also need to document where police found the drug to support a claim of possession. A person might be in actual possession or constructive possession of drugs. Actual possession means police found an illegal substance on someone's person, say in their pocket or coat. Constructive possession may apply when the police officer finds the drugs in a backpack or purse they can link to the defendant. It can also mean that the drugs are within one's control. Let's say, for example, the drugs were in the defendant's home or automobile.
The state will look for evidence that shows that the defendant knew that the drugs were present and what they were. Police may charge people with possession if they "should have known" that the drugs were in their possession or if they should have known that the substance in their possession was a controlled substance.
Intent to Distribute Drugs
Under this element, the government must prove that the person with the drugs was planning to sell or otherwise distribute them. The prosecutor will look at circumstantial evidence without incriminating statements from the defendant. Intent to distribute controlled substances may come from the amount of drugs. When the amount is too large for only personal use, the intent to sell or deliver the drugs becomes clear. Some other indications of intent include the presence of packaging materials like baggies, large amounts of money, drug paraphernalia, and communications from customers.
The Timing
Possession of the drugs must coincide with the intent to distribute them. What if someone has plans to sell 10 kilograms of heroin next week, but they have not yet received the shipment of the drugs? Police could not proceed with charges for possession with the intent to distribute because, after all, there was no possession. Yet, the related crimes of conspiracy to possess with intent to distribute and attempt to possess with intent to distribute might be available to authorities in that example.
Federal and State Laws and Penalties
Under federal law, it is illegal for an unauthorized person to knowingly or intentionally possess a controlled substance with intent to manufacture, distribute, or dispense it. Punishment for the crime depends on the amount and type of drug in question. For example, a conviction for a crime that involves 5 grams of methamphetamine can result in a sentence between five and 40 years in federal prison. It also depends on an offender's criminal record. A sentence for a first offense will likely differ from one with a history of prior offenses. Judges must also refer to the Federal Sentencing Guidelines in determining an appropriate sentence.
State laws may track the federal law or vary somewhat. In Florida, the law bans possession of a controlled substance with intent to sell, manufacture, or deliver it. If the drug is a Schedule I substance like heroin, the offense is a second-degree felony. An offender may face up to 15 years in state prison.
In contrast, Ohio law does not provide a separate element for "intent to distribute." Police and prosecutors pursue drug possession charges. The amount of the drug possessed by the offender implies the intent to distribute. For example, possession of 20 grams or more of cocaine will be a felony of the second degree. The crime will provide a mandatory minimum prison term of two to eight years.
Criminal convictions for possession of drugs with intent to distribute can carry harsh penalties. The law treats such offenders as it does those who sell, distribute, or manufacture illegal drugs. As a result, the government does not allow diversion programs or the possibility of expungement on these drug crimes. Still, state laws may vary significantly. You may want to review the drug possession laws of the state where you live.
Legal Defenses
Contesting drug charges is best done with a skilled criminal defense attorney. The legal defenses for possession with intent to distribute drugs align with common drug possession defenses. They include the following:
Police misconduct — Here, the defendant seeks to show that the police found the drugs as part of an illegal search or seizure. The Fourth Amendment of the U.S. Constitution protects all people from unreasonable search and seizure by the government. If the police did not have the authority to stop or probable cause to arrest, the drug evidence may get suppressed or thrown out.
Faulty evidence — The defense may have the substance tested and argue it does not contain the alleged controlled substance. Or, they may challenge the police chain of custody in the case. Failures in safe and secure confiscation and storage of the drug may lead to reasonable doubt.
Intent — Although police found the drugs near the defendant, the defense raises doubt about the defendant's knowledge of the substance or what it was.
Legal possession or use — If the drug is cannabis, the defendant may look to state law that may legalize possession or usage in small amounts for medical or personal use. Of course, this will not work in a federal case where marijuana is still illegal. With prescription drugs, the defendant may claim to have a valid prescription.
Sometimes, the best defense plan is compromise. If the state's evidence is not solid or key witnesses may be absent, the defense may seek a plea to a reduced charge. A misdemeanor plea may carry jail time instead of prison. It may also allow later expungement.
