The difference between possessing illegal drugs and possessing illegal
drugs with intent to distribute is huge in the criminal justice
system. People charged with simple felony possession of drugs often get
their charges reduced from felonies to misdemeanors. Simple possession
cases are also more likely to be eligible for pre-trial diversion or drug
court. The courts often see people charged with simple possession as drug
uses or drug addicts, but not drug dealers. For this reason most judges
and prosecutors believe these crimes are best resolved with chemical dependency
evaluations and treatment.
Possession with intent to distribute is a more serious crime. Persons charged
with this crime are seen as “drug dealers” by the court. Anyone
caught in the distribution chain is subject to a possession with intent
to distribute charge. This includes those who manufacture, transport,
deliver, and sell to the end user. Most criminal defendants charged with
“PWID” (Possession with Intent to Distribute) must post much
higher bail and face much more severe punishment.
Prosecutors have a lot of discretion in determining whether someone should
be charged with simple possession of a controlled substance or possession
with intent to distribute. In Nebraska, simple possession of methamphetamine
or cocaine is a felony charge carrying a term of zero to two years in
prison, while possession with intent to distribute methamphetamine and
cocaine starts off with a sentence of at least one to 50 years. Depending
on the weight of the narcotics, the charge could result in a prison sentence
as high as 20 to life. Furthermore, the larger the quantity of illegal
drugs, the more likely it is that the criminal defendant will face federal
charges. When it comes to the amount of drugs, weight or size does matter.
What can I do about drug charges?
When defending these cases, the first step is to try to keep all the drugs
out of court. Courts have rules that determine what evidence can be admitted
at trial. If the drugs are not allowed at trial because they were found
during an unlawful search or seizure by police the case will likely be
dismissed prior to trial.
Illegal drugs are often found in persons’ homes or cars during a
police search. Criminal defense attorneys will challenge the validity
of the search. Sometimes law enforcement will say they had consent to
search a vehicle, but that consent cannot be coerced. If a police officer
says something to the effect of “If you don’t give us consent,
we are just going to search it anyways and things are going to get a lot
worse for you,” judges might found the search to be coercive. An
arrest based on invalid consent is generally suppressed, which means the
result of the search cannot be used as evidence against the individual
arrested at trial.
Another way evidence can be excluded is if an officer forgoes consent entirely,
violating the fourth amendment right that protects against unreasonable
searches and seizures. For example, if law enforcement searches a house
without consent or without a search warrant, that evidence should not
be admissible at trial unless it falls under one of the exceptions to
the search warrant requirement.
While police officers generally do not need search warrants to search vehicles
on public roads and highways, if the car is illegally stopped or searched
without probable cause, the evidence must be suppressed.
For example, police on the interstate will pull over a car for a minor
traffic violation – like following too closely – and search
the vehicle. If the violation is clearly bogus, any evidence found should
be suppressed. Even when the stop is valid, law enforcement does not have
the right to search without consent or probably cause.
Take the scenario one step further, assuming that the traffic stop is valid
and the police officer has been denied consent and detains the driver
to utilize a drug dog to sniff the vehicle. If the drug dog is reliable
and indicates the odor of narcotics, then law enforcement may search the
vehicle. However, criminal defense attorneys often fight the government
about whether the dog was adequately trained or whether the dog clearly
indicated to the odor of narcotics in the vehicle.
The first step is always to determine if there is a way to fight the search
to determine if the drugs can be kept out of trial. If this avenue is
not successful, the next step is to raise reasonable doubt about the defendant’s
knowledge of the drugs.
What if I didn’t know that the drugs were in the car?
Another way to fight possession with intent to distribute cases is to challenge
whether the defendant actually knew about the substances found. Berry
Law Firm recently won a possession with intent to distribute methamphetamine
case in which a young man did not know he was traveling with a drug dealer.
At trial, law enforcement explained that they had been following the drug
dealer and set up a controlled buy in a parking lot prior to her picking
up our client. Police later received a call from the drug dealer attempting
to set up another deal and police promptly arrested both her and the passenger.
The passenger claimed he did not know anything about the drugs and was
ultimately found not guilty at trial. Unfortunately, even though police
did not have much evidence to connect him to the crime, he was still charged
and had to take the matter to a jury trial. This is not uncommon in possession
with intent to distribute cases.
How do police decide if the person they arrest is a drug user or a drug dealer?
Finally, what is the amount of drugs necessary to qualify for an intent
to distribute charge? Sometimes people are arrested with a small amount
of drugs but also possess scales, baggies, and cell phones full of text
messages about drug transactions. In these instances, individuals with
small amounts of drugs are often charged with possession with intent to
distribute. In other instances, the issue is not whether the person possessed
an unlawful controlled substance, but whether they possessed enough of
it to be found in possession with intent to distribute when there are
no scales, baggies, or incriminating text messages.
Possession with intent to distribute a controlled substance is a charge
that can be fought several different ways on several different levels.
There is a big difference between simple possession of an illegal drug
and possession with intent to distribute. A good criminal defense attorney
knows that there are several ways to fight drug charges.
If you or a loved one has been charged with possession with intent to distribute,
contact Berry Law Firm.