Possession with the Intent to Distribute

Created by FindLaw's team of legal writers and editors.

Under federal law, the possession of a controlled substance with the intent to sell or distribute it is a serious offense. To fully understand this crime, it helps to break it into two parts: (1) the possession of the drugs; and (2) the intent to distribute them. Both elements must be satisfied simultaneously to commit the offense of "possession with the intent to distribute." Most states have adopted the federal definition as well. Read on to learn how each of the elements of the crime works.

Possession

The first element, possession, isn't limited to having the illegal drugs in a pocket or knapsack. It can also mean that the drugs are within one's control. For example, you may be deemed to be "in possession" of narcotics if the drugs are found in your home or automobile.

However, to have possession, generally you must know that the drugs are present. If you had absolutely no idea the heroin or methamphetamine was there, you will have a strong defense. Many jurisdictions also 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 this element, the government must prove what the person possessing the drugs was planning to do with them. Because a government prosecutor can't get inside the mind of an accused person, 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. Some other indications that the possessor intended to sell the drugs include the presence of packaging materials, large amounts of money, and communications from customers.

The Timing

One final point to highlight is that the crime can't occur unless possession of the drugs occurs simultaneously with intent to distribute them. For example, if someone has plans to sell 10 kilograms of heroin but hasn't received the shipment yet, prosecutors can't charge him or her with the offense of possession with the intent to distribute -- because, after all, there was no possession. 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 for the Offense

Under federal law, the penalty for possession with the intent to distribute depends on the Federal Sentencing Guidelines. Judges must refer to the guidelines in imposing sentences. The length of imprisonment and the amount of monetary fines depends upon which controlled substance was involved and whether the defendant has a prior history of crime.

States penalties vary widely, so check your particular state's drug possession laws.

Get Professional Legal Help With Your Drug Case

If you've been charged with possession with intent to distribute, you'll need a strong advocate on your side. Don't waste a moment before speaking with an experienced attorney who knows how to poke holes in a prosecutor's case. Find a qualified criminal defense lawyer near you today.

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