Drug Possession With Intent to Distribute

Drug possession with intent to distribute means the defendant intended to sell, deliver, or transfer possession of a controlled substance to another person. Possession with the intent to distribute is a serious offense that is usually charged as a felony. Penalties for possession with intent to deliver can range from two to four or up to 40 years in prison with fines of $50,000 or more depending on the criminal record of the defendant and the types and amount of drugs seized.

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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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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jun 29, 2022

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Drug possession with intent to distribute, sometimes called possession with intent to sell or possession for sale, involves two basic elements. The first is the drug possession itself. The second is evidence of intent to sell or distribute the illegal substance.

Keep reading to find out what qualifies as intent to distribute and how do you prove intent to distribute. If you need help from a criminal law attorney, just enter your ZIP code for a free legal consultation.

Defining and Proving Drug Possession

When drug possession is charged it usually means that the suspect (allegedly) was in physical possession of the drugs when caught. However, possession of a controlled substance can also be shown where the suspect did not actually possess the drugs. This situation, called “constructive possession,” is for when drugs are found in or on someone’s property, and that person had 1) knowledge of the presence of the drugs, and 2) ability to control the drugs.

Constructive possession can be shown by incriminating circumstances. It is not necessary for the prosecutor to show that the party had actual knowledge of the presence of the drugs. In other words, the prosecutor does not need a confession or even direct evidence that the defendant placed the drugs there…it is only necessary to show that the defendant should have known that the drugs were present, given the situation.

The second element to a charge of drug possession with intent to sell is the “intent” part. What this means is there must be some mental intent to sell or distribute the drugs to others. This is generally shown by circumstantial evidence, although an attempt to sell to a police officer or evidence obtained from buyers may be used as direct evidence of intent. Circumstantial evidence of intent to sell narcotics or other drugs may include having a quantity of the drug greater than would be reasonable if the drug was for personal use, having possession of paraphernalia used for packaging or distributing drugs such as scales to weigh drugs, possession of large amounts of cash, or exhibiting behaviors such as multiple brief meetings with visitors to your home.

A defendant need not actually have sold anything in order to be charged with possession with intent to sell. The mere fact of intending or planning to sell/distribute the drug – even for free – may be sufficient to support the charge, as long as the prosecutor can show convincingly that you had the mental intention to do so.

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Penalties for Possession with Intent to Sell

Is possession with intent to distribute a felony?

Simple possession and possession with intent to distribute a controlled substance are different charges with different penalties. Drug possession for sale, of course, leads to much harsher penalties and is usually in fact charged as a felony. Although the maximum and minimum sentences vary for intent to distribute, depending on the state where the crime is charged, any past criminal history, and any evidence of having sought drug treatment.

The penalties for this crime vary depending on a number of factors such as:

  • The nature of the controlled substance – possession of a highly addictive and dangerous drug will face higher penalties
  • The amount of the drug in possession of the person who was arrested;
  • The criminal background of the defendant (whether he was previously convicted of a felony)
  • The possession of a firearm at the time the individual was arrested for possession of the drugs
  • The intent of the defendant to distribute the drugs to a person under the age of 18 years

In some states, possession of certain drugs for sale, such as schedule II drugs like cocaine or methamphetamine, can lead to sentences of up to 40 years in prison and fines of up to $50,000. In other states, sentences may start at 2 to 4 years in prison but increase rapidly to 20 or even 30 years if certain aggravating circumstances (like having a large amount of the drugs) are shown. The general rule is the more of a drug you have and the more dangerous the drug is, the more likely it is that you will face a long prison sentence.

Legal Defenses for Possession with Intent Charges

There may be several viable defenses available against a charge of drug possession with intent to distribute. First, the lack of possession is a common defense. The prosecutor must show that the defendant was in illegal possession of a controlled substance, so if a criminal lawyer can convince the jury that a defendant was never in possession, possession with intent to sell conviction can’t win.

In “constructive possession” situations, a defense of lack of possession makes sense, as an experienced criminal lawyer can easily challenge whether the defendant had knowledge of the presence of the drug. For a criminal trial, if a defense lawyer can create even a small amount of “reasonable doubt” as to why the drugs were there and whether the defendant truly knew about them, then the jury must return a “Not Guilty” verdict (i.e. – the defendant should be acquitted).

A lawyer may also defend on the basis that the defendant had no intent to sell the drugs. If it can be shown that a defendant was in possession of the drugs for personal use only and that there was no intent to actually distribute, the defendant would be subject to punishment that is typically much less severe than the sentences imposed for sales and intent to sell. In some states, a conviction of simple possession is also preferable because it allows a defendant to remain eligible for rehabilitation or drug diversion programs in lieu of prison time.

Suppressing Evidence in Possession with Intent to Distribute Cases

Because physical evidence such as the actual drugs or paraphernalia is important if the prosecutor is to secure a conviction, successful exclusion of the drug or paraphernalia evidence from a trial may prevent the defendant from being convicted. For example, to exclude the drug or paraphernalia or other evidence from a trial, called suppression of the evidence, a criminal attorney will examine the circumstances under which the police came into possession of the evidence very carefully. The Fourth Amendment of the U.S. Constitution requires any searches or seizures of people and their property to be reasonable. To be considered “reasonable” under the Fourth Amendment, a search must have been conducted with a warrant unless there was a very specific exception to the warrant requirement. A criminal lawyer will look carefully at the search and make sure the police carefully followed the law. If a search was illegal, then any evidence gained during the search will usually be suppressed (not admitted in court), which could make it impossible to show intent.

Another type of evidence, statements that incriminate the defendant, and evidence obtained as a result of a statement by the defendant, is also commonly excluded from trials for possession with intent. Legally, police must warn suspects of their Miranda rights before questioning occurs if the suspect is in custody, i.e. – in situations where the suspect is NOT free to leave. “Miranda warnings” are the reciting of a suspect’s rights, including the right to remain silent, the right to a lawyer whether or not they can afford one, etc. Miranda warnings also inform the suspect that any statements s/he makes to police may be used against him or her in court. This is an important advisory! Any incriminating statements a suspect gives while in custody if Miranda warnings were not given, could be suppressed…unless you voluntarily waive your rights by talking to the police or prosecutors anyway.

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