{"id":352120,"date":"2023-11-30T14:58:31","date_gmt":"2023-11-30T19:58:31","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/criminal\/criminal-charges\/possession-with-the-intent-to-distribute.html"},"modified":"2023-11-30T14:58:31","modified_gmt":"2023-11-30T19:58:31","slug":"possession-with-the-intent-to-distribute","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/criminal\/criminal-charges\/possession-with-the-intent-to-distribute.html","title":{"rendered":"Possession with the Intent to Distribute"},"content":{"rendered":"\n
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Possession With the Intent to Distribute<\/h1>\n\n
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\n By John Mascolo, Esq.<\/a> | Legally reviewed by John Mascolo, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

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Illegal drug possession with intent to distribute is a felony charge. In contrast to simple possession cases, an offender is likely to face a significant prison sentence. Most states have adopted some version of the federal crime in their statutes.<\/p>\n\n <\/div>\n\n\n\n

Under\u00a0federal law<\/a>, the illegal possession of a\u00a0controlled substance<\/a>\u00a0with the intent to sell or distribute it is a serious offense. To fully understand this crime, it helps to break it into two parts:<\/p>\n

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  1. Illegal possession of the drugs<\/li>\n
  2. Intent to distribute them<\/li>\n<\/ol>\n

    Both elements must be met to commit the federal offense of “possession with the intent to distribute.”<\/p>\n

    This article addresses the elements of this crime under federal and state law. It also highlights potential penalties and legal defenses. If you are facing a drug charge, you can also consult a criminal law attorney<\/a>. An experienced attorney can assess the evidence against you and advise on next steps.<\/p>\n

    Illegal Possession of Drugs<\/h2>\n

    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<\/a> (CSA) and whether the defendant has any legal right to have the drug.<\/p>\n

    Drugs in Schedule I, such as heroin and LSD, are illegal to possess in any quantity. There is no accepted medical use. The defendant can’t have a valid prescription.<\/p>\n

    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.<\/p>\n

    When the drug is\u00a0cannabis<\/a>, state and federal law may conflict.<\/p>\n

    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.<\/p>\n

    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\u00a0within one’s control<\/a>. Let’s say, for example, the drugs were in the defendant’s home or automobile.<\/p>\n

    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.<\/p>\n

    Intent to Distribute Drugs<\/h2>\n

    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\u00a0distribute<\/a>\u00a0controlled substances may come from the amount of drugs.<\/p>\n

    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.<\/p>\n

    The Timing of the Offense<\/h2>\n

    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.<\/p>\n

    Yet, the related crimes of\u00a0conspiracy<\/a>\u00a0to possess with intent to distribute and\u00a0attempt<\/a>\u00a0to possess with intent to distribute might be available to authorities in that example.<\/p>\n

    Federal and State Laws and Penalties<\/h2>\n

    Under\u00a0federal law<\/a>, 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.<\/p>\n

    For example, a conviction for a crime involving 5 grams of methamphetamine can result in a sentence between five and 40 years in federal prison. The sentence 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.<\/p>\n

    State laws may track the federal law or vary somewhat. In\u00a0Florida<\/a>, 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.<\/p>\n

    In contrast,\u00a0Ohio law<\/a>\u00a0does 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.<\/p>\n

    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 for these drug crimes. Still, state laws may vary significantly. You may want to review the\u00a0drug possession laws of the state<\/a>\u00a0where you live.<\/p>\n

    Legal Defenses to Drug Charges<\/h2>\n

    Contesting drug charges is best done with a skilled criminal defense attorney<\/a>. The legal defenses for possession with intent to distribute drugs align with common\u00a0drug possession defenses<\/a>. They include the following:<\/p>\n