By FindLaw Staff | Legally reviewed by Evan Fisher, Esq. | Last reviewed January 03, 2023
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Under federal law, the 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: (1) the possession of the drugs, and (2) the intent to distribute them. Both elements must be satisfied to commit the offense of "possession with the intent to distribute."
Most states have adopted some version of the federal definition, as well. Read on to learn how each of the elements of the crime works.
The first element, possession, is not limited to having the illegal drugs in a pocket or knapsack. It can also mean that the drugs are within one's control. For example, one may be deemed to be "in possession" of narcotics if the drugs are found in one's home or automobile.
However, to have possession, generally the suspect must know that the drugs are present. Someone who has absolutely no idea that heroin or methamphetamines were stashed in their home will have a strong defense. Many jurisdictions also 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. Under this broad standard, the prosecution typically has an easier time proving the possession element.
Under this element, the government must prove that the person possessing the drugs was planning to sell or otherwise distribute them. In the absence of incriminating statements from the defendant, intent is often proven by the surrounding circumstances. Typically, the intent to distribute controlled substances is assumed when the accused is holding an amount too large to be for only personal use. Some other indications that the possessor intended to sell the drugs include the presence of packaging materials, large amounts of money, and communications from customers.
One final point to highlight is that the crime cannot be proven unless possession of the drugs occurs simultaneously with intent to distribute them. For example, if someone has plans to sell ten kilograms of heroin next week, but they have not yet received the shipment of the drugs, prosecutors could not proceed with charges for possession with the intent to distribute -- because, after all, there was no possession. However, 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.
Under federal law, the penalty for possession with the intent to distribute depends on the Federal Sentencing Guidelines. Judges must refer to the guidelines in imposing sentences. The length of imprisonment and the amount of monetary fines depends upon which controlled substances were involved and whether the defendant has a prior criminal history.
States penalties vary widely, so it may be necessary to refer to each particular state's drug possession laws.
If you have been charged with possession with intent to distribute, you will need a strong advocate on your side. An experienced attorney can help develop a defense for your case. Find a qualified criminal defense lawyer near you today.
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