1.22.10 Criminal Defense Newsletter

Possession with Intent to Distribute

In last week’s newsletter, we learned how drugs are classified in Massachusetts and how an individual who is charged with the possession of a controlled substance may be prosecuted and punished by the Commonwealth. This week, we are going to learn what happens to an individual who is caught with a controlled substance and is accused of doing more with the controlled substance than merely possessing it. When this occurs, the individual may be charged with a more severe crime that is commonly referred to as possession with intent to distribute. Although this is the common name given to this crime, there are a few common misconceptions about the elements of the crime. These misconceptions will be cleared up below.

There are two elements that the Commonwealth must prove beyond a reasonable doubt in order for someone to be convicted of possession with intent to distribute. First, the Commonwealth must prove that the individual knowingly or intentionally manufactured, distributed, dispensed or possessed a controlled substance. This means that, at the very least, it must be proven that the drugs were knowingly in the possession of the individual being charged. The possession cannot be accidental. Second, in addition to possession, the Commonwealth must prove that the individual had the intent to manufacture, distribute or dispense the drug.This element is the key difference between being charged with simple possession of a controlled substance and possession with intent to distribute a controlled substance.

There are two common misconceptions about possession with intent to distribute that need to addressed. First, many people incorrectly assume that people are charged with possession with intent to distribute only if they are caught selling the controlled substance. When someone thinks of drug crimes, they usually imagine someone possessing the drugs for their own personal use or selling them to others. However, there are other circumstances in which an individual can be caught with drugs. The act of selling is not one of the elements of the crime of possession with the intent to distribute. As mentioned above, it is the intent to manufacture, distribute or dispense the controlled substance that is the crime. Therefore, an individual who is merely holding drugs that he or she plans to share with, or give to, a friend can be charged with the crime of possession with intent to distribute.

The other common misconception is that an individual must be caught in the act of selling or distributing the drugs to be convicted of possession with intent to distribute. Again, this belief is incorrect and the statute explains why. The law requires only that an individual possess the controlled substance with the intent to manufacture, distribute or dispense it. Therefore, an individual can be charged with possession with intent to distribute without actually being caught in the act of distributing as long as it can be proven beyond a reasonable doubt that he or she intended to distribute the controlled substance in the future. The Commonwealth may use other evidence, such as a large sum of cash in the individual’s possession, to help prove that the individual intended to distribute the controlled substance.

Punishment

As we learned last week, controlled substances are regulated by Chapter 94C of the Massachusetts General Laws. They are broken down into five separate classes based on their similarities. The punishments for possession with intent to distribute are broken down by Class. The drugs in Class A appear to be regarded as the most serious controlled substances by the legislature and receive the harshest punishment. As we move from Class A to Class E, the severity of the punishment decreases as the perceived harm to society decreases. For example, possession with the intent to distribute heroin is punished much more severely than marijuana. Although people may disagree about which controlled substances harm society the most and receive the harshest punishment, this classification and punishment system appears to make sense.

Commentary

If there is any possibility of the government claiming there was an intent to sell drugs found in the possession of a suspect, they will do so. There are many reasons for this, but the limits of common sense do not necessarily apply.

“She has money on her? Must be drug proceeds.”
“There is a scale in his home? Gotta be for weighing and packaging drugs.”
“You say he shook someone’s hand? Bingo! Must have been a sale!”

As both a prosecutor and defense attorney, I have handled several hundred of these types of cases. Add that to the experience of the other members of our Criminal Law Department and you can mark that into the thousands. We know the issues that come up in these cases and how to combat them.

We hope that, should the necessity arise, you put us to the test.

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