Possession with the Intent to Distribute

Under federal law, the possession of a controlled substance with the intent to distribute that substance is illegal and punishable by fines and imprisonment. To fully understand this crime, it helps to break it into three parts: possession, intent to distribute, and possession with the intent to distribute. Under federal law, "possession with the intent to distribute" has not been committed unless all three elements are satisfied. It’s important to note that most states have adopted the federal definition as well. Read on to learn how each of the elements of the crime work.


The federal government and most states prohibit possession of controlled substances. Under the law, possession isn’t defined as merely the act of holding illegal drugs on your person, such as in someone's hands, pockets, or a bag or purse, but can also mean that the drugs are within that person's control. For example, a person may be deemed to be “in possession” of narcotics if the drugs are found in their home or automobile.

However, to be charged with possession, generally the person must know that the drugs are present. In other words, they either knowingly obtained or received the controlled substance, or knew of the presence of the drugs and failed to get rid of them. Many jurisdictions take this knowledge requirement one step further and charge people with possession if they "should have known" that the drugs were in their possession, or if they should have known that the substance in their possession was a controlled substance. Under this broad standard, the prosecution typically has an easier time proving the possession element.

Intent to Distribute

Under the distribution element, the government must prove what the person possessing the drugs was planning, or intending, to do with the drugs. Naturally, a government prosecutor can’t get inside the mind of the person accused of the crime, so intent has to be proven by the surrounding circumstances. Typically, the intent to distribute, or sell, the controlled substance is assumed when the accused is holding an amount too large to be for only personal use. However, other indications that the possessor intended to sell the drugs include the presence of drug paraphernalia, packaging materials, large amounts of money, and communications from customers.

Possession with Intent to Distribute

The crime of possession with the intent to distribute has not occurred unless both the possession and the intent to distribute elements have occurred at the same time. For example, if the accused possesses a small amount of a controlled substance that’s only enough for personal use, he or she probably doesn’t have the intent to distribute and can therefore only be charged with possession. Likewise, if people have the intention to sell a large amount of drugs, but the drugs aren’t yet in their possession, they can’t be charged with the crime solely based on their intent to distribute. However, the related crimes of conspiracy to possess with intent to distribute and attempt to possess with intent to distribute may have been committed in that example.

Penalties Under Federal and State Laws

Under federal law, the penalty for possession with the intent to distribute is directed by the Federal Sentencing Guidelines. After an accused is convicted of the crime, a second hearing for sentencing is held. The federal judge determines the sentence, and must follow the guidelines unless a mitigating or aggravating factor is present. The fines and length of imprisonment vary widely depending upon which controlled substance was involved and whether the person convicted has a prior history of crime.

In addition, state penalties vary widely from state to state. Take a look at the FindLaw State Drug Possession index to locate the applicable law for your state.

Get Professional Legal Help With Your Drug Case

Given the burden on prosecutors to prove all three elements of possession with intent to distribute, you may be able to mount a strong defense against the charge. Having a trusted and experienced lawyer can make all the difference in these types of cases as they know what to look for and how to shape arguments in your favor. Find a qualified criminal defense attorney near you today. 

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