If you need help fighting a ‘possession with intent to distribute’ charge, there is no time to waste. Contact the Helfend Law Group today at 800-834-6434 to begin building your defense.

One of the notable things about the crime of “possession with intent to distribute” is that you can be charged with it even if you didn’t actually have any intent to distribute.

It comes down to how the law is structured. Ever since the early days of the so-called “War on Drugs,” the government has put a significant emphasis on finding, prosecuting and making examples of the people responsible for distributing drugs in the United States.

As a result, drug laws are very broad. If someone is found with more than a certain amount of drugs in their possession, certain paraphernalia or was found in an area where drug dealing is common, the law assumes that they had an “intent to distribute” — even if that wasn’t actually the case.

Possession with intent to distribute is a crime on both the state and federal levels, and in both cases, it is significantly more serious than a simple possession charge. If you or someone you know has been accused of possession with intent to distribute, an experienced criminal defense attorney can help you start building your defense. Call the Helfend Law Group at 800-834-6434 for your free case review.

Let’s start with the Controlled Substances Act

Before we get into the specifics of possession with intent to distribute, it’s important to spend a moment on the Controlled Substances Act.

Not all drugs are treated equally, and the Controlled Substances Act is the reason why. Established in 1970, the CSA classifies drugs into five “schedules” based on their potential for abuse, risk of dependence and accepted medical use. The classification of a drug under the CSA significantly affects the severity of charges and penalties for possession with intent to distribute.

Schedule I substances, for instance, have a high potential for abuse, no currently accepted medical use, and a lack of accepted safety for use under medical supervision. This category includes illegal drugs like heroin, LSD and marijuana. Note that marijuana is a Schedule I controlled substance under federal law. Even as states like California have relaxed our approach to marijuana over the last few decades, the federal government still classifies it alongside the most serious drugs.

On the other end of the spectrum, Schedule IV substances have a lower potential for abuse and are used more frequently for therapeutic treatments. This includes some prescription medications like benzodiazepines (Schedule IV) or cough preparations with a limited amount of narcotics (Schedule V).

How do prosecutors prove ‘intent to distribute?’

As we mentioned above, the law gives prosecutors a lot of leeway to show that a defendant has intent to distribute.

Depending on the facts of the case, prosecutors will attempt to do this through a combination of direct and circumstantial evidence. Direct evidence includes statements from defendants about having drugs to sell, whereas circumstantial evidence involves factors that imply intent, such as the presence of drugs in areas known for drug dealing.

Circumstantial evidence

Circumstantial evidence is evidence that does not directly prove a fact, but instead points to a fact by inference. This type of evidence is used to imply that something occurred but does not directly demonstrate it.

Even if only circumstantial evidence is available, it can still lead to a conviction for drug crimes. Instances of direct evidence, like a defendant caught in the act of selling drugs, are relatively rare in cases of intent to distribute, with most cases involving circumstantial evidence instead.

Circumstantial evidence used to prove intent to distribute includes:

  • Large quantities of drugs, indicative of quantities beyond personal use
  • The presence of scales and drug paraphernalia
  • Financial evidence, such as unexplained wealth or large sums of cash

In essence, prosecutors often use a “totality of the circumstances” approach to argue that various pieces of circumstantial evidence together indicate intent to distribute.

Direct evidence

While circumstantial evidence is the most commonly used form of evidence in possession with intent to distribute cases, direct evidence is obviously the most compelling.

Direct evidence clearly indicates that the defendant intended to sell a controlled substance. This eliminates the need for making inferences. This includes instances where the defendant is caught in the act of selling the controlled substance.

Recorded transactions, such as audio or video evidence of a drug sale, and incriminating statements from the defendant expressing their plan to sell drugs, are examples of direct evidence. Witness testimony providing firsthand accounts of the defendant’s drug selling activities and a police officer witnessing the defendant sell drugs offer compelling direct evidence.

Physical evidence like marked money from controlled buys and direct sales of drugs to an undercover agent reinforce the presence of direct evidence of intent to distribute.

When is possession with intent to distribute a federal crime, and when is it a state crime?

Possession with intent to distribute becomes a federal crime under specific circumstances, but it can also be prosecuted under state laws.

  1. Federal Crime – Possession with intent to distribute is a federal crime under the Controlled Substances Act (CSA), primarily codified at 21 U.S.C. §§ 841 and following. This law applies to cases involving controlled substances and certain chemicals used in their manufacture. It becomes a federal crime in situations like:
    • When the offense crosses state lines or involves an international border.
    • If the offense occurs on federal property or involves a federal agent.
    • When the quantity of the drugs meets or exceeds certain federal thresholds.
    • In cases involving a large-scale or sophisticated distribution network.
    • If the case is connected to other federal offenses, such as money laundering or organized crime activities.
  2. State Crime – It becomes a state crime under circumstances like:
    • When the offense occurs entirely within a single state’s boundaries.
    • If the quantities involved are below the thresholds set by federal law.
    • When local or state law enforcement agencies handle the investigation and prosecution without federal involvement.

The decision to prosecute a case at the federal or state level can depend on various factors, including the specifics of the offense, the agencies involved in the investigation, and prosecutorial discretion. Federal penalties for drug offenses are generally more severe than state penalties, reflecting the federal government’s broader policy objectives in controlling drug trafficking and abuse.

Possession with intent to distribute in California

Under California state law, specifically Health and Safety Code Section 11351, possession with intent to distribute is treated as a felony with potential punishments including imprisonment and fines.

The potential penalties are influenced by factors like the type of controlled substance and the quantity in possession. Possessing drugs like heroin or cocaine in California usually leads to felony charges, which are more severe than misdemeanors for possession of drugs for personal use.

Penalties for possession with intent to distribute in California can include:

  • Probation
  • Jail or prison time
  • Fines
  • Mandatory drug treatment programs

Under federal law

As we mentioned above, the key section addressing possession with intent to distribute under federal law is 21 U.S.C. Section 841, which was established by the Controlled Substances Act.

The penalties for violating 21 U.S.C. §§ 841 vary based on factors such as the type and amount of the drug involved, the geographic area of the offense, any prior criminal history, and whether the offense resulted in injury or death. These penalties can include substantial fines and lengthy prison sentences, particularly for large quantities of controlled substances or if the offense involves drugs in Schedules I and II, which are considered to have a high potential for abuse.

Penalties for possession with intent to distribute drugs

Federal judges must refer to the Federal Sentencing Guidelines when determining an appropriate sentence for first-time offenders, which could result in a range of penalties including prison time. A first-time offender facing federal charges for possession with intent to distribute may receive a lighter sentence compared to someone with a history of prior offenses.

Navigating a first offense

The severity of the sentence depends on various factors, including the type and amount of the controlled substance, the offender’s role in the offense and the presence of any aggravating or mitigating circumstances.

Here are a few examples based on different controlled substances:

  • Marijuana – For a first-time offender, possession with intent to distribute less than 50 kilograms of marijuana can result in up to 5 years in prison and a fine of up to $250,000 for an individual.
  • Cocaine – For possession with intent to distribute at least 500 grams but less than 5 kilograms of cocaine, a first-time offender faces a mandatory minimum sentence of 5 years and a maximum of 40 years in prison. The fine can be up to $5 million for individuals.
  • Heroin – For at least 100 grams but less than 1 kilogram of heroin, the mandatory minimum sentence is 5 years, and the maximum can be up to 40 years. The fine may reach up to $5 million for an individual.
  • Methamphetamine – Possession with intent to distribute 5 grams or more of pure methamphetamine or 50 grams or more of a mixture can lead to a mandatory minimum of 5 years and a maximum of 40 years in prison for a first-time offender. The fine can be up to $5 million for individuals.

It’s important to note that these are just baseline figures. Actual sentences can vary based on the Federal Sentencing Guidelines, which take into account the specific circumstances of each case, including the offender’s criminal history and role in the offense, as well as other relevant factors.

Judges have some discretion in sentencing, although mandatory minimum sentences must be observed where applicable. Additionally, if certain aggravating factors are present, such as the distribution of drugs near a school or if the offense resulted in death or serious bodily injury, the penalties can be significantly higher.

Enhanced penalties for a prior felony drug conviction

If the individual has a prior felony drug conviction, these penalties can increase substantially. The Federal Sentencing Guidelines and specific federal statutes mandate harsher sentences for repeat offenders. For instance:

  1. Second felony drug conviction – The same offense that would result in 5 to 40 years for a first-time offender could lead to 10 years to life in prison for someone with a prior felony drug conviction.
  2. Mandatory minimums – Federal law often imposes mandatory minimum sentences for drug offenses, especially for repeat offenders. This means that the judge has limited discretion to impose a sentence below the specified minimum.
  3. Enhanced penalties – In some cases, especially involving large quantities of drugs or additional aggravating factors (like distribution near a school or involving minors), repeat offenders may face doubled or otherwise increased penalties compared to first-time offenders.

These enhanced penalties reflect the federal government’s aim to deter repeat offenses and target individuals who are considered more integral to drug trafficking operations. However, it’s important to note that individual cases can vary, and other factors like cooperation with authorities or the specifics of the case can influence the final sentence.

Defenses against controlled substance distribution charges

While the prosecution builds its case, the defense has its strategies to challenge the charges of possession with intent to distribute. Defensive strategies may include:

  • Challenging the integrity of the evidence
  • Questioning whether the defendant knowingly possessed the substance with the intent to distribute
  • Asserting that a search or seizure was illegal under the Fourth Amendment

Challenging the evidence

Defense attorneys can challenge the prosecution’s assertions to create doubt in the jury’s mind. It is a constitutional requirement that each element of a criminal offense be proven beyond a reasonable doubt for a conviction. Defense attorneys might contest the quantity of the drugs as being insufficient to prove intent to distribute, suggesting the drugs were meant for personal use. They can also question the credibility of prosecution’s witnesses, including informants, by highlighting factors that may affect their reliability.

In cases involving constructive possession charges, defenses can involve demonstrating an illegal search by police or refuting the individual’s knowledge and control over the location of the substance. These strategies can sow doubt in the jury’s mind and can potentially change the course of the trial.

Invalid searches and seizures

The Fourth Amendment guarantees individuals protection from unreasonable searches and seizures, laying the foundation for challenging improperly obtained evidence. Evidence obtained from an unlawful search or seizure can be excluded from trial if the search was conducted without proper consent, a valid warrant, or due to a police misconduct.

Defense can argue for suppression of evidence if it was collected under search warrants without probable cause, or during traffic stops that lacked legal justification.

Having practiced exclusively in criminal defense since 1984, Robert M. Helfend of the Helfend Law Group has more than 30 years of experience with a record of successfully defending more than 4,000 cases, ranging from simple possession to major felony charges and Federal crimes.

Robert M. Helfend’s caliber as a defense attorney is reflected in his multiple recognitions, including:

  • Being named a Top 100 Trial Lawyer by the National Trial Lawyers Association
  • A Lead Counsel
  • His recognition as one of the best cannabis attorneys in Los Angeles by CNBS.org in 2023

His commitment to the field is evident in his dedicated representation of clients involved in a wide spectrum of drug offenses and his profound understanding of both California law and Federal Law, showcasing his meticulous attention to detail and proficient defenses in the courtroom.

If you are facing drug charges, contact the Helfend Law Group today. Robert M. Helfend is available for a free case evaluation to individuals facing criminal charges at 800-834-6434.

Published February 24, 2024.