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Possession with Intent to Distribute and Simple Possession

Possession of drugs (“controlled substance”) with the intent to distribute or sell is a felony offense under Louisiana state law as well as under Federal law. The Louisiana drug laws are found in Louisiana Revised Statutes 40§966-970 and the federal laws are found primarily in 18 U.S.C. §841. Possession and possession with intent to distribute are treated differently in both state and federal courts.

Possession with intent to distribute compared to simple possession

Possession of a Controlled Substance with Intent to Distribute

Not every drug is illegal to possess. It is illegal to have possession of a controlled substance with intent to distribute if you do not have a valid prescription from a doctor. The intent to distribute must be of a controlled substance. The State of Louisiana and the Feds have decided what is considered a controlled substance. Louisiana has followed the Federal government in classifying controlled substances in various schedules according to potential danger to society. Louisiana has five schedules with schedule 1 being the most serious and schedule 5 being the less serious.

Intent to Distribute

If someone is found by the police to be in possession of one of the scheduled controlled substances without a valid prescription and other facts are present o believe he/she was in possession to sell or deliver to another person, the police will likely book them for intent to distribute. The facts required to add the charge of intent to distribute on top of the simple possession could include the large amount, cash, baggies, scales, form of packaging, other people involved in moving the drugs, and more.

Is Possession With Intent to Distribute a Felony?

Yes, possession with intent to distribute is a felony charge in Louisiana. Depending on the type of drug and amount of drugs, you could be facing a mandatory minimum sentence. Possession with intent to distribute is considered a felony because it carries the possibility of a hard labor sentence. On the other hand, misdemeanor possession does not carry possible hard labor, only parish jail time, probation and/or fines.

Intent to Distribute Amount

In Louisiana, there is no hard and fast rule that determines what specific quantity of drugs that is considered an intent to distribute amount.  The intent to distribute amount is generally an amount large enough to reasonably believe it is not for personal use. This is a fact for a jury to decide. Police try to use “reasonable” as the test when making arrests for intent to distribute. For example, if the defendant had 2 grams of cocaine, that is generally viewed as a personal amount and the charge would be simple possession of Schedule 2 drugs.  If the defendant possessed 200 grams of cocaine, this would be considered an intent to distribute amount.

There are provisions in the intent to distribute statutes that provide if the defendant was possessing a specific amount, it automatically becomes an intent to distribute charge. Therefore, in this case, no other facts are required to show the defendant had possession with intent to deliver. No evidence of baggies, scales, cash, etc. is required. For example, simple possession of 28 grams or more of cocaine is to be considered as possession with intent to distribute, according to Louisiana drug laws. So, if you go out and buy an eight-ball to party all weekend and there is no evidence you are a drug dealer, you could get popped for an intent to distribute charge based solely on the amount of the drugs.

Possession with Intent to Deliver

The Louisiana law does not differentiate between possession with intent to deliver versus intent to distribute or intent to sell. In fact, they are all considered the same intent to distribute charge. You do not have to sell the drugs or make money or even exchange anything to be charged with possession with intent. The prosecutor must prove that you possessed with the intent to give drugs to someone else. That’s why possessing an eight-ball of cocaine is considered possession with intent because it is likely you will share it with others, which is distribution.

Possession with Intent to Supply

Possession with intent to supply drugs falls within the same charge. Intent to supply is when the defendant had possession with the intent to break up the drugs with a scale and supply others through sale. The prosecutor would attempt to use as evidence any guns, scales, cash, baggies, packaging, witnesses to prove possession with intent to supply. Many times, confidential informants will tip off the police that the defendant had a stash that he was in possession with intent to sell. So, they will send the informant in with a wire and audio to make a controlled buy. This will often lead to a distribution charge.

possession with intent to distribute drugs
Possession with Intent to Distribute Drugs

Possession with Intent to Distribute First Offense

Having a clean record when you pick up a drug charge can help. It all depends on the jurisdiction and the amount of drugs. If you get a possession with intent to distribute first offense charge in a rural area and you were carrying 50 pounds of heroin, you can be sure the judge does not care that you have a clean record. He will likely sentence you to prison for many years. On the other hand, if you had a small amount of cocaine, meth, or marijuana, your clean record may help us work out a good deal with the prosecutor. Many possession with intent charges have mandatory minimum sentences which can allow for probation but may prevent you from removing it from your record. Our goal is to always try to get the prosecutor to work with us to reduce the charge so our client can get it removed from his record.

Possession with Intent to Distribute Jail Time

Possession with intent to distribute jail time varies based on the schedule of drug and the quantity of the drug alleged to have possessed. If the type of drug is not heroin or fentanyl and the amount isn’t too large, you may be able to get probation or better if you’re criminal record doesn’t look too bad. That way, you could avoid jail time for your possession with intent charge altogether.  However, if you’re convicted of moving 10 pounds of fentanyl through Louisiana, the judge would sentence you between 5-40 years hard labor. Depending on the judge and your background, the jail time you could receive for possession with intent could be around 15-20 years for that amount.  Judges in Louisiana take fentanyl possession cases very seriously.

Intent to Buy Drugs Charge

Occasionally, we are asked if someone can get arrested for intent to buy drugs. There is no intent to buy drugs charge in Louisiana. Either you possess it or distribute drugs. If the person only possesses cash but not drugs and then meets up with a drug dealer, there can be no arrest of the buyer until he buys the drugs and possesses the drugs. If a police officer sees someone driving around a known drug area going slowly as if looking for a dealer, the officer might look for something wrong with his driving or his vehicle and make a stop.

What is Attempted Possession?

An attempted possession of drugs is usually used only in the context of plea deals. Police typically do not arrest someone for attempted possession of drugs. The police may arrest someone for possession with intent and the district attorney files a formal charge for possession of drugs or possession with intent. After negotiating, the prosecutor may end up agreeing to a reduced charge of attempted possession just so that the sentencing range is cut in half. This is important because the judge is then left to order a sentence. So, if the range is cut in half, that minimizes potential jail time for the defendant.

Attempt to Distribute Charge

This is the same scenario as stated above. For instance, a defendant is arrest for distribution of drugs which carries a sentencing range of 5-40 years in prison. If the prosecutor agrees to reduce the charge to an attempt to distribute charge upon the defendant pleading guilty, the sentencing range is cut down to 0-20 years. Now, the judge can’t go above 20 years on the sentence.

Simple Possession

Simple possession of drugs is a the intentional and knowingly possession of drugs without a valid prescription. Simple possession can be actual, joint, and/or constructive possession. These are legal concepts used by the prosecutor and police to stick a simple possession charge on someone. Actual possession is when illegal drugs are found on the person of the arrested defendant. For example, drugs found in your pocket or cigarette pack is actual possession.  Joint possession is when two or more people can be said to be possessing the same drugs.

If Your Passenger Has Drugs

If your passenger has drugs, does that mean the drugs are yours? Not necessarily. For example, four people are riding in a car with 5 pounds of marijuana in a bag in the backseat, the police might arrest all four people with simple possession or even possession with intent unless someone speaks up and says it is his only and that the other passengers didn’t own or control the drugs. Nevertheless, just because someone is riding with someone who has drugs doesn’t mean that passenger is in possession even if he knows there are drugs there. If the passenger doesn’t own or control those drugs, he is not in simple possession of those drugs. Constructive possession is when drugs are found not on the defendant’s person, but circumstantial facts could prove the defendant possessed those drugs. For example, drugs found in the trunk of the car could support constructive possession.

First Offense Simple Possession

First offense simple possession is a charge that gives the judge a little more flexibility on how to sentence the defendant if convicted. The defendant’s criminal record is important for judges is determining a sentence. If a defendant has no prior convictions on his record: therefore, making the current charge his first offense simple possession, then the judge may show more leniency.  The court will consider all prior convictions, not just drug convictions. First offense simple possession of methamphetamine carries a potential sentence of 0-2 years in prison. It is a probatable offense and one that we may allow the defendant to file a motion to expunge his record after successful completion of probation. Also, we may be able to work a deal including the defendant completing drug treatment or some other rehabilitative program. There are many options in a first offense simple possession case. In these cases, the quantity of drug is relatively low.

Sentences for Possession

Sentences for possession generally allow for probation as long as the quantity is low and the defendant’s criminal record isn’t too bad. Below are some examples of sentencing ranges for simple possession of drugs. Notice, many do not have mandatory minimum sentence for drug possession. However, for there are mandatory minimum sentences for possession with intent to distribute.

Possession of Alprazolam (Xanax) 1-5 w/wo hard labor

Distribution, Manufacture or PWID Alprazolam 1-10 w/wo hard labor

Possession of Cocaine (<2g) 0-2 w/wo hard labor

Possession of Cocaine (2g – 28g) 1-5 w/wo hard labor

Distribution or PWID (Possession with intent to distribute) Cocaine (<28g) 1-10 w/wo hard labor

Distribution or PWID Cocaine (more than or equal to 28g) 1-20 at hard labor

Possession of Ecstasy/MDMA (<2g) 0-2 w/wo hard labor

Possession of Ecstasy/MDMA (2g-28g) 1-10 w/wo hard labor

Distribution, Manufacture or PWID (<28g) Ecstasy (MDMA) 1-10 w/wo hard labor

Distribution, Manufacture or PWID (more than or equal to 28g) Ecstasy (MDMA) 1-20 at hard labor

Possession of Heroin and Fentanyl (<2g) 2-4 w/wo hard labor

Possession of Fentanyl (2g – 28g) 2-10 w/wo hard labor

Distribution, Manufacture or PWID, Possession of Fentanyl (more than or = 28g) 5-40 at hard labor

Possession of Methamphetamine (<2g) 0-2 w/wo hard labor

Possession of Methamphetamine (2g – 28g) 1-5 w/wo hard labor

PWID Methamphetamine (<28g) 1-10 w/wo hard labor

PWID Methamphetamine (>28g) 1-20 at hard labor

Conspiracy to Distribute a Controlled Substance

Conspiracy to distribute a controlled substance and conspiracy to possess with intent to distribute cases arise when multiple people are engaged in the possession of drugs. Usually, they are accused of trafficking the drugs and are stopped in a vehicle or at the airport or bus station. Police may seize multiple bags from co-defendants that were traveling together. Also, conspiracy arrests happen in drug trafficking situations where there are two cars following each other, and one car has the load. The police might arrest both even the car without the load if they believe there are facts to prove both drivers were conspiring together to move the load. More specifically, it must be proven they were both engaged in acts to possess the drugs with intent. Many defenses can exist in conspiracy drug cases.

Defenses to the Charge

A legal defense to this charge is the accused person’s lack of intent to possess and knowledge about the presence of drugs. The prosecutor must prove that the defendant had knowledge and intent to possess drugs and that he had dominion and control over the drugs. The prosecutor may try to prove other circumstantial facts that they believe tend to show intentional and knowing possession. We know how to beat drug cases on many different levels. We leave no rock unturned in developing defenses. The stop and search are always heavily analyzed applying the most recent Louisiana law and federal constitutional case laws. If you have a bad case, we know how to fight to get the lowest possible sentence and plea agreement. If you are a first-offender, that gives us even more options to get a great result and protect your criminal record for the future. If you need a drug defense attorney in Louisiana for your possession case, contact us anytime.

Carl Barkemeyer wrote the published book titled How to Defend Drug Charges in Louisiana. He regularly gives lectures and advice to other attorneys regarding how to successfully defend clients for drug possession and distribution.

Louisiana DWI & Criminal Lawyers

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Louisiana criminal lawyers and DWI attorneys at the Barkemeyer Law Firm providing legal defense services for clients in Baton Rouge, Ascension, Livingston, Tangipahoa, Port Allen, Alexandria, New Orleans, Lafayette, Metairie, Kenner, Gretna, Hahnville, Chalmette, Slidell, St. Tammany, St. Charles, St. John, St. Bernard, Mandeville, Covington, Shreveport, Bossier, Jefferson, and all of Louisiana.

DISCLAIMER: The information on this website is not formal legal advice nor does it create an attorney-client relationship.

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