When it comes to narcotic substances, a person can be accused of drug possession or possession with intent to sell (PWIS), and the distinction between these significantly impacts the severity of the charges. Simple possession typically leads to a misdemeanor or gross misdemeanor charge while possession with intent to sell/distribute is a felony. In either case, you will do yourself a favor by enlisting the help of an adept drug lawyer.
Having said that, it is crucial to understand the implications of a PWIS charge and know your rights when arrested to ensure that you are not coaxed into admitting something that can stand against you or worse yet, pleading guilty to a crime you did not commit. So, let’s start with the basics…
What are drug possession laws?
Being in possession of a controlled substance, no matter what the quantity and even if it is for personal use, is a crime in most states across the country. Although the legislation surrounding the possession, use, and sale of marijuana has been changed in some states, crossing into a state where the possession of marijuana has not been decriminalized will get you in trouble.
Undoubtedly, societal perception towards the use of drugs has seen a marked shift in recent years. Because there is a greater understanding of addiction and its impact on mental health today, drug users are treated as patients in need of help rather than as criminals.
However, this shift has also led lawmakers to take a stricter approach toward those who make illicit substances available to addicts. Hence, aggressive prosecution is common when an individual is accused of possession with intent to sell (PWIS), which means that you will need the help of an experienced drug lawyer. Across the country, the possession of controlled substances takes on two forms:
1. Actual possession: This means that controlled substances were found on the person of the accused; for instance in his/her hands or hidden inside a pocket or a bag that this individual is carrying.
2. Constructive possession: This implies that the accused was not actually in physical possession of narcotics but he/she knowingly possessed or had kept or hidden such substances in a place under his/her control, such as in the house, office, dorm room or even the center console of the car.
In case of constructive possession, multiple people can be charged with the offense as long as there is cause to believe that they could have controlled the possession or storage of narcotics or that they were directly or indirectly involved in the act of possession. For instance, roommates can be arrested and charged if controlled substances are found in common living areas.
These charges are further bifurcated into two categories- Simple drug possession or possession of controlled substances for personal use and drug possession with intent to sell or distribute.
What is drug possession with intent to sell?
This charge means that the accused had drugs in his/her possession and had the intention of selling the narcotics for money. A lot of states now have special drug courts to handle offenses relating to the simple possession of drugs. Typically, they will give first-time offenders the option to avoid a conviction if they plead guilty, agree to undergo court-mandated rehabilitation treatment, and stay sober and crime-free through the probation period.
However, these courts do not hear matters pertaining to PWIS charges which are felonies. Also, no such leniency in punishment is shown to defendants accused of drug possession with intent to sell, deliver, distribute and/or manufacture. If proven, a PWIS charge will lead to prison time and a criminal record that cannot be expunged.
How does the prosecution prove drug possession with intent to sell?
These charges are framed based on multiple elements of crime. The prosecution has to prove all of these elements to prove that the defendant is guilty. On the other hand, a drug lawyer only has to create reasonable doubt pertaining to one or more of these elements. But, this is hardly an easy task as the prosecutor is likely to use the following to prove the charges:
· Direct evidence of the fact that the accused was selling drugs: This refers to direct or irrefutable proof of the defendant’s intent to sell controlled substances. For instance, a police officer witnessing the actual sale of drugs or the attempt to sell drugs. This police officer could witness the sale in the line of duty or as an undercover agent to whom the defendant sold/tried to sell the narcotics.
Such direct evidence need not always involve the in-person sale of drugs. The deal could happen over the phone or even involve the online distribution of drugs. Video and audio surveillance footage, witness testimony, and drug tests are all used as direct evidence in such cases.
· Intent proved through quantity: The amount of the controlled substance found in the possession of the accused is often a central element of the PWIS charge. If the amount exceeds a quantity that is deemed normal for personal use, this affords the prosecution ample room to argue that the accused could only be carrying this quantity of a controlled substance for sale.
· Intent proved through packaging and paraphernalia: Circumstantial evidence can also be used to prove intent. Such evidence could include items that are typically used to pack, store, and distribute controlled substances like scales, baggies, large amounts of cash, and firearms.
Intent can also be proved if the defendant was found to possess a significant quantity of drugs in an area known for the sale of controlled substances. It is important to mention that timing also has an impact on whether PWIS charges can be brought against an accused.
For example, if the police have clear evidence that the accused plans to sell a certain amount of drugs in a week but has not received the shipment of the controlled substance as yet, he cannot be charged with PWIS because they cannot prove actual nor constructive possession. But, this does not mean the accused walks. Most states have legal provisions that allow the police to charge defendants with conspiracy or attempt to possess/procure controlled substances for selling
Does the drug possession with intent to sell charge change based on the controlled substance?
Yes, it does! Controlled substances are classified into various “Schedules” on the basis of their risk of addiction and their medical use. Schedule I substances usually include highly dangerous and addictive drugs such as LSD, heroin, and others. They cannot be legally carried in any quantity in any part of the country. Also, there is no accepted medical use of these substances.
As opposed to this, substances in Schedule II to Schedule V have some legitimate medical use. So, to prove even simple drug possession charges in the case of such substances the state has to show the defendant had no right to possess the substance.
While a drug lawyer will have a hard time explaining why the defendant was moving about with even a gram of cocaine or methamphetamine, the argument of the legal right to possess is easier when the substance in question is a pain medication like hydrocodone or oxycodone.
So, both the type and quantity of controlled substances can impact the charges against the accused. For instance, federal law treats the actual distribution of or intent to sell 220 lbs. of marijuana the same as the actual distribution of or intent to sell 5 grams of methamphetamines or 1 gram of LSD.
What factors impact the penalties for PWIS?
· The amount of drug that the accused possessed at the time of arrest.
· The nature of the drug. Schedule I and II substances will lead to harsher penalties than the possession of marijuana.
· The irrefutability of the evidence supporting intent to sell.
· Evince that supports intent to sell to persons below the age of 18 years.
· Firearms found in possession of the accused alongside the drugs.
· Criminal history of the accused and if this is the defendant’s first drug-related offense.
· Proximity of the PWIS arrest area from public parks, recreational centers, youth centers, churches, and schools.
· Age of the accused.
What is the punishment for PWIS offenses under state and federal laws?
Drug possession with intent to sell is a felony under federal laws. While the quantum of punishment will depend on the controlled substance and its quantity, a conviction in such matters could lead to a prison sentence of five to forty years in a federal penitentiary.
As far as state laws are concerned, these are frequently similar to federal laws or vary a bit. For instance, in Florida, a PWIS charge involving a Schedule I substance like heroin could lead to a 15-year prison sentence. But in Arkansas, even the possession of a Schedule II substance other than cocaine and methamphetamine (28-200 grams) can lead to a prison term of up to 20 years and a fine of $15,000
As opposed to this, Ohio does not have a separate element for PWIS, so the prosecution will pursue the charges based on the quantity of drugs possessed. For instance, if the defendant is found to possess 20 grams or more of cocaine, this will lead to a 2nd-degree felony charge and if it’s proven, a prison term of two to eight years.
What are some of the common mistakes that defendants make when arrested for drug possession with intent to sell?
It is imperative to know your rights if you are arrested for PWIS. One of the most common and risky mistakes that defendants make is talking to the police just because the officers have asked them a question that implies guilt or have made a statement that is not true.
Explaining your side of the story to the police in your own words is not always in your best interest. In fact, it can be outright risky to do so in the absence of your drug lawyer. The Miranda Rights read out to the person being arrested stay in effect for the entire duration of the arrest. This means you are not obligated to respond to the questions asked by the police. You also have the right to call your drug lawyer.
Another mistake that defendants make is waiting too long to call their drug lawyer. The prosecution starts building its case the minute you are detained by law enforcement officers. And a lot can transpire between the time of your arrest and the time you are presented in court for a bail hearing that will impact not just your chances of being released on bail but also the outcome of the criminal case against you. So, it’s best to enlist the help of an experienced drug lawyer from the very beginning.
Sometimes a compromise that involves you pleading guilty to lesser charges and settling for a shorter prison sentence is the only option. But, once again only a local drug lawyer can tell you if cutting a deal with the prosecution is in your best interest.
What are the legal defenses that a drug lawyer is likely to use against a PWIS charge?
Contesting a PWIS charge is no cakewalk and hence should be left to a skilled drug lawyer. While the exact strategy that your drug lawyer will use depends on the specific circumstances of your arrest and your case, often attorneys tend to use the same legal defenses for PWIS as they do for simple possession. These tried and tested techniques include:
1. Proving police misconduct: Here the defense attorney tries to prove that while the accused may have been found with drugs on his/her person, the search and seizure were illegal, and as such any evidence gathered through such illegal means cannot be used against the defendant.
The Fourth Amendment protects American citizens from unreasonable search and seizure by government agencies. So, if the police did not have the authority to stop the defendant at the time of arrest or did not have probable cause to make the arrest, any evidence gathered during such arrest can be thrown out or suppressed.
2. Evidence that lacks credibility: Another frequently used defense is that of faulty evidence. For this, a drug lawyer would get the substance tested and then argue that it is not the controlled substance that the prosecution claimed it to be. Another way is to prove failures in safely and securely confiscating and storing the controlled substance. Also, a drug lawyer may find fault in the police chain of custody.
3. Intent in case of constructive possession: A drug lawyer may also argue that although drugs were found in an area under the control of the defendant, there is reason to believe that the accused had no knowledge of what the substance was or of the substance being stored in said area.
4. State laws pertaining to usage or right to use: Defense could also try to prove that the accused had a prescription for the controlled substance and as such the right to possess it. In case of cannabis possession, a drug lawyer could use state legislations that legalize the possession and use of marijuana for certain medical or personal purposes.
In a nutshell, a charge of drug possession with intent to sell is a serious offense in almost all 50 states. While the exact nature of the charges brought against the accused will vary based on the type and quantity of the controlled substance as well as state legislation, this is not a criminal matter that a defendant can handle on his/her own. So, if you or someone you know has been charged with PWIS, get in touch with an experienced drug lawyer who has a proven track record of getting acquittals in such cases.