Under the law, the illegal possession of a controlled substance with the intent to sell or distribute it is a severe offense. There are two parts to this crime, including the unlawful possession of the drugs and the intent to distribute them. Both elements must be met to commit the offense of "possession with the intent to distribute."
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 if the defendant has any legal right to have the drug.
Drugs in Schedule I, such as heroin, are illegal to have in any quantity. There is no accepted medical use. Drugs that fall in Schedules II through V of the CSA all have some legitimate medical use.
Thus, the district attorney must show that the defendant had no right to have the drug in question. This may be easy when the drug is methamphetamine or cocaine.
However, it might require some investigation if the drug was a prescribed pain medication like oxycodone or hydrocodone.
A controlled substance is a drug or other chemical compound regulated by law. Both state and federal laws regulate these substances.
In California, the criminal charge of "possession with intent to distribute" a controlled substance is a more serious felony offense than simple misdemeanor drug possession.
This offense is often called "drug possession with intent to sell" and is codified under California Health and Safety Code 11351 HS. So, how do prosecutors demonstrate not only that you possessed a controlled substance but that you intended to sell or distribute it? Let's review below.
Direct v. Circumstantial Evidence
The notion of intent is a critical factor that must be convincingly established for a conviction to occur. Intent to distribute narcotics can be proven with direct or circumstantial evidence.
Sometimes, law enforcement will have direct evidence, such as a defendant's statement they have drugs to sell or if they sold drugs to an undercover police officer.
Most cases will rely on circumstantial evidence, such as the drug packaging in multiple small baggies or bindles, scales, or having a large quantity of drugs.
To convict, the district attorney who filed charges of drug possession with intent to sell must prove that intent beyond a reasonable doubt using direct or circumstantial evidence.
This evidence does not require proof that the illegal drugs were for sale; instead, only that the defendant intended to distribute or deliver them, even if they were not in exchange for something of value.
What Types of Evidence is Used?
As noted, prosecutors rely on two types of evidence when attempting to demonstrate that a defendant intended to sell or distribute a controlled substance: direct evidence and circumstantial evidence.
Direct Evidence
Direct evidence refers to clear proof that directly supports a fact. It shows the defendant's intent to sell a controlled substance and their intent to do so without the need for inference.
Direct evidence does not require inference or assumption to connect it to the crime, such as selling illegal drugs to an undercover law enforcement officer during a video-recorded police sting operation. It significantly strengthens the prosecution's case. Some examples include the following:
- Documentary evidence. Text messages or emails that discuss plans to sell or distribute drugs are considered direct evidence, mainly when they include details such as quantities, prices, and distribution methods.
- Eyewitness testimony. Testimony from people who have directly observed the defendant selling or distributing. Perhaps a police officer observed a drug deal in progress.
- Verbal admission. If the defendant was heard verbally admitting to intending to sell or distribute the drugs, this admission could serve as direct evidence against them. Maybe they were caught on tape discussing a plan to sell drugs, or perhaps an undercover officer overheard it.
Circumstantial Evidence
Circumstantial evidence requires the jury to make inferences to connect the evidence to the crime, such as possessing baggies, scales, packaging tape, or a large amount of cash.
These individual pieces of evidence don't necessarily prove the defendant's intent, but prosecutors will argue that the totality of the circumstances shows an intent to sell drugs.
Most intent to sell drug convictions rely solely on circumstantial evidence. Indirect evidence suggests a fact by implication or supports a logical conclusion about intent. Some examples include the following:
- Scales and packaging materials. Any possession of scales, baggies, or other packaging materials near the controlled substances will be considered a defendant preparing for distribution.
- Large sums of cash. Large amounts of money in small denominations found along with controlled substances often indicate drug sales.
- Large quantity of drugs. Possessing an amount of drugs exceeding personal use levels could imply intent to distribute. Perhaps the drugs are packaged consistently with distribution.
- Frequent visitors. A high number of people coming and going from the defendant's residence, especially brief visits, suggest transactional activities related to drug distribution.
What are the Best Defenses?
As noted, prosecutors rely almost exclusively on circumstantial evidence in many cases, and they are often able to prove intent to distribute.
Thus, most strategies from a California criminal defense lawyer will focus on casting doubt or uncertainty around the circumstantial evidence presented.
Further, since the penalties for possession with intent to distribute are more severe than simple possession, a common strategy is to get the charge reduced. Some of the most common methods include the following:
- Lack of Knowledge. Perhaps we can argue that the defendant was unaware of the presence of the controlled substances. This argument challenges the prosecution's claim that the defendant had control over the drugs with the intent to distribute them.
- Personal Use. Sometimes, we can argue that the drugs were intended for personal use, not distribution. Perhaps we can show the defendant had an issue with substance dependence.
- Unlawful Search and Seizure. Perhaps we can argue that law enforcement violated the accused's Fourth Amendment rights with an illegal search and seizure; the evidence gathered could be deemed inadmissible in court.
- Entrapment occurs when police induce someone to commit a crime they would not have otherwise committed. If the defense can prove entrapment, the charges could be dismissed.
Avoiding a drug conviction for this element of "intent to distribute" is critical. These convictions are typically felonies with severe penalties, including a mandatory minimum prison sentence. Contact our law firm for more information. Eisner Gorin LLP is based in Los Angeles, California.
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