The difference between illegal drug possession and possession with intent to distribute is significant in the Lenexa, KS, justice system. The former is more likely to be eligible for pre-trial diversion, while the latter is much more serious and requires a strong defense strategy. This means you need a drug crime lawyer familiar with the laws who can build your case and advocate on your behalf.
Time to Call a Drug Crime Lawyer: What Happens if You’re Charged with Drug Possession With Intent to Distribute in Lenexa, KS?
Possession of a controlled substance is already a serious offense in Kansas. The consequences become even worse when an offender is charged with the intent to distribute those drugs to others. To illustrate, simple possession is classified as a drug severity level 4 felony. The classification instantly gets bumped to a drug severity level 3 felony for possession with intent. This means it’s punishable by a fine as high as $300,000.
The Sentencing Grid
As for prison time, your presumptive sentence for a felony is based on a grid that combines the level of the offense with your overall criminal history. This grid places people into one of three categories: presumptive probation, presumptive prison, or no presumption either way.
In most cases, a low criminal history with a possession charge can lead to presumptive probation. But you’re likely facing a presumptive prison sentence if you’re additionally charged with the intent to distribute. Prison may also be likely if you have a higher criminal record.
Understanding the Concept of Possession
The concept of possession is often more complex than people realize in that different elements can constitute possession of a drug. Of course, one of these is physically having a particular substance in your possession. But this isn’t the only act that can lead to a drug possession charge. Shared possession may arise if the drug in question is being shared, as often happens with marijuana.
The law identifies the element of constructive possession as well. This charge may be levied if a person doesn’t have physical possession of a drug but does have knowledge of its nearby presence and is able to control it. Prosecutors may charge just one person or multiple persons. For instance, when police find drugs in a car, both the driver and passenger(s) can be charged with constructive possession of the same drug.
Explaining the Charge of Intent to Distribute
The intent to distribute charges requires prosecutors to prove more than possession of a drug. They must show you intended to distribute it, which requires they also prove the conscious knowledge of possession as well as plans for distribution.
It is important to understand, however, that actual distribution does not need to be proven for a charge of intent to distribute. In other words, you don’t have to be found actually selling or even giving away a substance to be charged. Nor does concrete evidence need to be provided showing such intent existed – meaning police don’t need to overhear you explicitly saying you plan to sell drugs. You can be charged based on much less overt evidence.
Quantity Is Key
In Kansas, the intent to distribute can be substantiated by the amount of a particular drug found in your possession. If the quantity exceeds what would be considered average for individual use, you may be accused of intent to distribute.
Distribution is defined as any transfer. It therefore doesn’t matter if you sold the drugs to break even, for profit, or merely gave them away (as mentioned earlier). The quantity necessary to trigger the presumption of distribution varies for each drug, and the amounts listed here are the “minimums” required for presumptive distribution. Penalties increase as amounts increase:
- Cocaine over 3.5g
- Methamphetamine over 1g
- Heroin over 1g
- Pills over 10 dosage units
Marijuana Classifications Also Depend on Quantity
While many states have made strides to legalize marijuana, just the opposite is true in Kansas. This drug is illegal for any purpose, and possession of even a small amount can be punishable by up to six months in prison and a $1,000 fine for just your first offense. As with the substances listed above, the felony level of possession with intent to distribute is based on the quantity possessed:
- A level 4 felony is 25 grams or less
- A level 3 felony is 25 to 450 grams
- A level 2 felony is 450 grams to 30 kilograms
- A level 1 felony is 30 kilograms or more
Defending Against a Drug Charge
A drug crime lawyer may use one of several tactics to defend you against the charge of drug possession with intent to distribute. The first step will likely be to see if the confiscated drugs can be kept out of court. Courts abide by rules that determine what evidence can and cannot be admitted. If the drugs were found and obtained during an unlawful search or seizure, they will not be allowed at trial. This means the case will likely be dismissed.
Law enforcement will sometimes claim they received consent prior to searching a vehicle, but how that consent was obtained is important. If an officer tells you something along the lines of, “We’ll conduct a search with or without your consent, and things will just get a lot worse for you,” the judge might determine you were coerced into agreeing. This can lead to a suppression of the evidence obtained.
An Illegal Stop
Police officers generally don’t need search warrants to go through vehicles on public roads and highways. But if the car is illegally stopped or searched without probable cause, this presents another situation in which the evidence may be omitted from court.
For instance, an officer might pull your car over for a minor traffic violation, such as following the car ahead of you too closely, and then search your vehicle. If the violation is clearly a sham, any evidence found can be suppressed. And even if the stop is valid, officers lack the right to conduct a search without probable cause (or consent, as described above).
One Step at a Time
Again, the first step in building a strong defense is to identify if the drugs can be kept out of court. If this path proves unlikely, your drug crime lawyer may then try to raise doubt about your intent to distribute. Your attorney may even challenge your knowledge of the substance altogether.
Let’s say you’re found inside the car of a person who does intend to sell drugs. You don’t know of this person’s intentions and, likewise, don’t know illegal substances are also inside the car. The court needs to be made aware of these facts, and your attorney will promptly include them in your defense strategy.
Protect Your Freedom
Your attorney may also suggest you enter into a deal that prevents or reduces a prison term. With a plea deal, the prosecutor agrees to reduce the charge to one of presumptive probation. Alternatively, your lawyer may ask the judge for a departure at sentencing in which an argument is presented for a shorter prison term.
The charge of possession with intent to distribute is a serious matter that demands your full attention. With the right Lenexa, KS attorney by your side, you may be able to reduce your charges or even get the evidence suppressed altogether. But don’t hire just any attorney. You need one experienced in fighting for defendants’ rights – and we have just that. Schedule your free consultation today by contacting Billam & Henderson, LLC, Attorneys at Law.