Laws regarding Intent to distribute

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Dr.groveller

Bluelighter
Joined
Mar 3, 2002
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Jurisdiction- I live in Colorado. However, this is a general question that may vary and is simply for personal edification- I'm not facing any charges.
A discussion arose in Other Drugs regarding laws dealing with intent to distribute drugs. Most jurisdictions give a weight limit- once you're over that, you get slapped with intent to distribute. However, I was under the impression that you can get slapped for intent even if you're below the limit based on the circumstances. Obviously, if you're busted selling, you get distribution (duh). However, what if you're picked up, searched and the police find let's say 5 individually wrapped doses of a substance- let's say you have .1g of meth in little glassine bags- a total of 5 (or enough to still be under the weight limit for automatic intent charges), can you still be charged with intent since a case can be made that individual wrapped packaging implies possible selling?
I think I'm being specific enough...
Thanks
doc
 
Lets make it complete - shall we?
The discussion arose concerning ingestion of cocaine while driving.
Having a personal amount in point bags was suggested (by myself) as a method of making it easier to consume the cocaine enroute. Insert straw, snort, done. Note: I don't condone drugs and driving in any way. I personally think it's retarded.
I maintain an explanation of why the small quantity is divided (portion control), an admission that consumption was occurring while driving, and presentation of the consumed baggies would likely mean the intent charge would be dropped to possession, plus whatever vehicular violations apply.
 
Here is the law in Colorado --
Except as authorized by part 3 of article 22 of title 12, C.R.S., or by part 2 or 3 of this article, it is unlawful for any person knowingly to manufacture, dispense, sell, distribute, possess, or to possess with intent to manufacture, dispense, sell, or distribute a controlled substance; or induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, possess, or possess with intent to manufacture, dispense, sell, or distribute a controlled substance.
(I) A class 3 felony; except that a person commits a class 4 felony if such violation is based on the possession of a controlled substance listed in schedule II unless otherwise provided in paragraph (a) of subsection (3) of this section; or
So it appears that they consider all of the offenses you listed (possession, distribution, poss w/intent) under the same guidelines and have the same punishment..
They list punishments strictly by amount of the substance involved..
It also depends on which schedule the drug is listed.. Meth is schedule I and would be a Class 3 felony with the amount you gave while Coke is Schedule II and would be a Class 4 felony. That applies to a first time offender though..
[ 15 July 2002: Message edited by: Conspiracy Kid ]
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[EDIT - This is not a legal question, and it probably violates the policy of this website. - MA]
 
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Dr.groveller said:
Jurisdiction- I live in Colorado. However, this is a general question that may vary and is simply for personal edification- I'm not facing any charges.
A discussion arose in Other Drugs regarding laws dealing with intent to distribute drugs. Most jurisdictions give a weight limit- once you're over that, you get slapped with intent to distribute. However, I was under the impression that you can get slapped for intent even if you're below the limit based on the circumstances. Obviously, if you're busted selling, you get distribution (duh). However, what if you're picked up, searched and the police find let's say 5 individually wrapped doses of a substance- let's say you have .1g of meth in little glassine bags- a total of 5 (or enough to still be under the weight limit for automatic intent charges), can you still be charged with intent since a case can be made that individual wrapped packaging implies possible selling?
I think I'm being specific enough...
Thanks
doc
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You can get charged with intent to distribute for any number of reasons, no matter what quantity of drugs you have. Common evidence to support this charge includes having the drug divided into smaller amounts, having scales, having pay-owe sheets, having large amounts of cash, having large numbers of baggies, statements you may have made, statements others may have made, etc.

In most states, having a certain quantity of drugs merely creates an evidentiary presumption -- that is, having this quantity is sufficient evidence to charge you with intent to distribute. In other words, the defense cannot get the distribution charge thrown out by arguing that there was insufficient evidence of intent to distribute, even if the large quantity of drugs is the only evidence the prosecutor has to base the charge on.

However, the jury still has to be convinced that you actually had an intent to distribute. Thus, it is possible (though not likely) that you could produce evidence showing that all the drugs were for personal consumption, earning yourself a charge of mere possession despite having a quantity above the limit for a possession charge.

I say this is not likely though, because the jury can "reasonably infer" an intent to distribute based solely on the quantity, and it is hard for the defense to disprove it. I guess your attorney could put you on the stand to testify that the drugs were for your own personal consumption, but 1) the jury may not believe you; and 2) it's almost always a bad idea to put the defendant on the stand, since the prosecutor can cross-examine you and bring out evidence concerning certain prior convictions in order to impeach you.
 
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I say this is not likely though, because the jury can "reasonably infer" an intent to distribute based solely on the quantity, and it is hard for the defense to disprove it. I guess your attorney could put you on the stand to testify that the drugs were for your own personal consumption, but 1) the jury may not believe you; and 2) it's almost always a bad idea to put the defendant on the stand, since the prosecutor can cross-examine you and bring out evidence concerning certain prior convictions in order to impeach you.
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Isn't the burden on the prosecution to prove each and every element of the offense beyond a reasonable doubt for a jury to find a person guilty of an offense? So in the case of possesion versus distribution, simply posessing 5x .1g bags of meth should NOT be deemed conclusive proof in to a reasonable person that it HAD to mean the person was distributing. The person could have just BOUGHT it that way, divided it that way to make it easier to injest a specific size dose when the person wanted to, might not have had a larger bag to store it in, etc... etc... If a defense lawyer can raise REASONABLE doubt this way, then it ought to be easy to get a not guilt verdict on distribution. Of course, if the defendent has a prior history of distribution, was observed making transactions, or something that makes it OBVIOUS he was dealing, all bets are off. But I don't understnd why just possessing 5x .1g or meth should almost guarantee a distribution conviction!

Aother such example.... I know people who like to buy quantities of MDMA (50-100 pills at a time) from a reputable dealer in a conventient location where it can be tested so that the person always has a stash on hand for when they want to roll. Buying singles from strangers or in clubs is simply too risky. And if you find a reputable dealer who will let you test em, the SMART thing to do is buy a quantity that will last you a good long period of time. It's also less expesice in quantities. I would hope a good defense attorney could convince a reasonable jury that's why a person might have 100 pills in their possession; not to distribute them!
 
AfterGlow said:
Isn't the burden on the prosecution to prove each and every element of the offense beyond a reasonable doubt for a jury to find a person guilty of an offense?
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Yes, the burden is on the prosecution... 8)

AfterGlow said:
So in the case of possesion versus distribution, simply posessing 5x .1g bags of meth should NOT be deemed conclusive proof in to a reasonable person that it HAD to mean the person was distributing.
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It isn't "deemed conclusive proof" -- the point is that it is reasonable for a jury to infer guilt (beyond a reasonable doubt) based on quantity. That is, the jury can find the proof to be "conclusive".

It's partly a procedural issue. As a general matter, the defense can make a motion to dismiss -- either before, during, or after the trial -- arguing that the evidence was so lacking that no reasonable jury could find guilt beyond a reasonable doubt.

This quantity=intent rule is just a way of saying, "as long as there is at least quantity X, that's sufficient evidence for the jury to find intent beyond a reasonable doubt." Thus, if the defense makes a motion to dismiss, arguing that there's no evidence of intent to distribute, apart from the quantity, then the motion must fail.

AfterGlow said:
The person could have just BOUGHT it that way, divided it that way to make it easier to injest a specific size dose when the person wanted to, might not have had a larger bag to store it in, etc... etc... If a defense lawyer can raise REASONABLE doubt this way, then it ought to be easy to get a not guilt verdict on distribution.
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OK, so let's say you're the defense lawyer. As a practical matter, how are you going to get this sort of evidence before the jury? Have the defendant testify about it? Good luck...

AfterGlow said:
But I don't understnd why just possessing 5x .1g or meth should almost guarantee a distribution conviction!
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But it doesn't guarantee a conviction. If (and that's a big IF) the jury doesn't think the quantity shows intent, then you get a not guilty on the distribution charge.

The only thing that it "guarantees" is that a defense motion to dismiss for insufficiency of evidence will get denied.

AfterGlow said:
Aother such example.... I know people who like to buy quantities of MDMA (50-100 pills at a time) from a reputable dealer in a conventient location where it can be tested so that the person always has a stash on hand for when they want to roll. Buying singles from strangers or in clubs is simply too risky. And if you find a reputable dealer who will let you test em, the SMART thing to do is buy a quantity that will last you a good long period of time. It's also less expesice in quantities. I would hope a good defense attorney could convince a reasonable jury that's why a person might have 100 pills in their possession; not to distribute them!
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Yeah, but see the defense attorney can only present arguments based on evidence that she's presented at trial. I ask you again, how are you going to present evidence to show this?

Your claim about the burden of proof being on the prosecution is an unrealistic one. In the real world, when the cops catch your guy with a large quantity of drugs, believe me, the burden is on YOU to get him off!!
 
OK, so let's say you're the defense lawyer. As a practical matter, how are you going to get this sort of evidence before the jury? Have the defendant testify about it? Good luck...
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Couldn't a defense lawyer mention it in his opening and closing statements, then use witnesses who are ex-drug users that now lecture about the evils of drugs, or even use police themselves, to explain that if you want to buy .5 grams of meth from a dealer on the street, you may very well have to accept it in whatever form of packaging the dealer has it in, possible 5x .1mg bags (points).

All the defense lawyer has to do it make the point in a convincing manner several times that most drug purchasers are at the mercy of the drug dealers when it comes to the way the drugs are packaged. If I'm in a club and want to buy a 10-pack of E, it rarely comes in 1 bag of 10. It can come in 2 bags of 5, 5 bags of 2, or even 10 bags of 1 ea. If I'm later arrested that night and am charged with distribtution, it would just seem as though a lawyer could make a convincing argument WHY I possesed the pills packaged as they were and raise reasonable doubt about whether I was distributing!

There should need to be some corroborating evidence, such as as observing the person make several drug transactions, catching him with bills wadded as though they were accepted for multiple drug purchases, a log of activity, etc...

I just know that if I were on a jury and the prosecution asserted that this person MUST be a dealer because he had 5 bags of .1mg of meth instead of 1 bag and the defense claimed this is how be boght it that night from a dealer, (no other evidence about this issue) I would want to disuss with the rest of the jurors during deliberations whether reasonable doubt was raised about the distribution charge.
 
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It's not as easy as you make it sound. For the most part, if the only problem is that you've got a couple bags instead of one, and it's not a real large quantity, a distribution charge will usually be plead down to possession or some such. When a case goes to trial, it is usually the case that you're talking about serious quantity, or 30 little bags instead of just two.

Second, even if you put on witnesses to testify for you, there's no reason why the jury has to believe them. The prosecutor is plenty able to put on witnesses who say otherwise, and he can speak just as convincingly as you - usually more so.

Believe it or not, juries tend to be skeptical of drug users -- and their lawyers.

I'm not saying it's impossible; it's just not something I want to gamble on if I'm deciding whether to go to trial or take a plea.
 
^^^ BTW, again, I'm not saying it's impossible, just hard.

I should add that I have heard of cases where intent to distribute has been debated successfully when there is large quantity -- around here it arises with respect to marijuana most frequently, partly because there's a medical marijuana argument, and juries are more likely to buy the argument that you actually intended to consume the marijuana, even if it's a substantial amount.

I once wrote a motion to dismiss a distribution charge on a medical marijuana angle, where the guy had about an ounce of weed tied up into a couple dozen gram-sized baggies. We argued that he divvied it up that way because he needed to ration it out on a medical basis. The motion wasn't granted, for other reasons, but he ended up getting off on a misdemeanor possession charge in the end (it never went to trial).
 
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