Can I be charged with possession for sale if I use drugs but have never sold them?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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To charge and convict you of possession for sale, the law does not require the police to prove you actually sold the drugs, just that your intent was to sell. This is done by examining the circumstances of your [alleged] drug possession, and by expert opinion of the police. A case of simple possession can easily be transformed into possession for sale, especially if you don’t have a vigilant and aggressive attorney working on your behalf.

Convincing a Court of Intent to Sell

Many factors will be relevant to proving that a person’s intent was to sell, rather than simply to use personally. One factor is the person’s typical level of usage. Another is the packaging of the drugs, as having many small units (balloons, bindles, baggies) would lend itself toward the prosecution’s argument that your drugs were allegedly pre-packaged to sell. Where the drugs are found and what is found with them is also often a key factor. Three bindles of heroin may well be for personal use, but maybe not – especially if they were found, for instance, in your pocket as you stand on a street corner – at 2:00 a.m. – in a prime drug dealing district. Etc.

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Paraphernalia and Other Issues

Having certain drug paraphernalia and other items relevant to sale of drugs can also lend itself toward a charge of possession for sale. If the drugs are found with scales for measuring quantity, (and especially if there are drug traces on them), or with large amounts of cash (like 100- $20 bills), customer lists, boxes of tiny plastic zip lock bags, or a weapon, police or a jury may well draw the “for sale” conclusion.

Evidence of statements a suspect made in front of witnesses that show an intent to sell drugs may provide the missing legal intent to prove a “drug sales” charge. In addition, experienced narcotics officers will be allowed to testify that from their experience these factors and the quantity found are consistent with an intent to sell the drugs.

Possession for Free Giveaway Same As Possession for Sale

Also, keep in mind that in most jurisdictions it does not matter if the drugs are to be sold for cash, loaned, or even given away for free. If the prosecutor can prove an intent to “distribute” illegal drugs, it’s good enough. If you have been charged with drug possession for sale, it is important to contact a criminal lawyer right away. Don’t bank on the assistance a busy public defender can give you. While possession of a controlled substance, in some states, implies drug addiction and allows for more lenient sentences including probation and drug diversion programs, drug possession for sale is a more serious offense. An attorney will help you fight the possession for sale charge, and minimize both the chances of a conviction and any possible penalties if you are convicted. In fact, just having a private defense attorney may influence the prosecutor to offer you some sort of a deal that will minimize the effects of your charges. If you were caught and aren’t able to get the charges dropped completely, or win a trial, your attorney might be able to get you a deal that will allow you to go on with your life with lesser penalties.

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