Possession with Intent to Distribute Marijuana
Possession with Intent to Distribute (or PWID) marijuana is an unusual charge in that it can cover a lot of different types of behaviors. The law distinguishes between felony and misdemeanor cases based upon the quantity of marijuana involved. Anything below a ½ ounce is categorized as a misdemeanor. Anything above is classified as a Felony. There are also enhanced penalties when the amount in question is 5 pounds or more.
However, just having a quantity over ½ ounce isn’t enough to automatically establish that a person is guilty of a felony, or guilty of intent to distribute at all. There needs to be other evidence of a person’s intent. Even the way the marijuana is packaged is only a factor that can be used to determine guilt. There are a number of cases that say that even if the weed is in several separate baggies there must be some evidence that the Defendant was planning to sell in that manner. This is because the law has said that it is just as likely that the person chose to purchase a number of individually wrapped baggies. Even having a scale is only a contributing factor, as it can also be argued that the arrested party was using the sale to purchase and not to buy.
So how then are these cases usually proven?
The overwhelming majority of the time it is based on people telling on themselves. As you have seen several times before, frequently unprovable cases become provable when you admit to committing a crime. So if a suspect does the right thing and exercises their right to remain silent, it will become increasingly difficult for the police to prove intent.
A common misconception is that the charge requires someone to be a “drug dealer”. This is untrue. Under the PWID statute, it not only addresses selling, but also giving or distributing. So even if you simply planned to share a joint with a friend, you have elevated the crime from possession to possession with intent. Now, if you don’t have any financial interest in selling the drugs, then it is very likely that the matter will be resolved in a favorable way, but you are starting the case from a position of weakness.
The police will sometimes go undercover on craigslist or other sites where people advertise that they are looking for friend to smoke with. These “friend for 420” cases happen with some frequency in Fairfax County. The police will reply to an ad, often posing as an attractive young woman who wants to just smoke weed. Then when the perp shows up at her house or a store, the police jump out and arrest you on suspicion of pwid. Again, these cases are very frequently reduced. However, the biggest distinction between possession with intent and regular possession is the ability to keep your record clean. If a judge thinks that you are guilty of PWID, he has to convict you and stick you with a permanent criminal record. If he thinks that you are guilty of possession, he has the option of allowing a diversion program where your case will be dismissed after completing some requirements. The 251 program is not available if you are determined to have had an intent to distribute. Even if that intent was just to give.
DEFENSES
There are a lot of defenses in these sorts of cases, particularly if there are no incriminating statements. In any drug case, the first analysis begins with how did the police find the contraband. Were all of their searches and seizures done legally? Did they have probable cause to justify their actions? Because most low level drug cases happen so rapidly the police rarely have time to secure a search warrant. This means that they will have to prove to a great extent that they were in compliance with a suspect’s rights.
Beyond just the legality of police actions, these sorts of cases must also establish beyond a reasonable doubt that the person actually possessed the drugs. Possession is not ownership. So you can get in trouble for having drugs that are someone else’s. However, merely being close to the drugs is not enough. Even having them in your car is not enough. There needs to be some other proof that you knew they were there. Again, this is usually provided by statements, which is all the more reason that you should never talk to the police.
Finally, intent can be very hard to prove. Intent is a state of mind. By definition, it has to be proven by some other extrinsic factor. This is often an issue and a weak point in these sorts of cases that can possibly be exploited for a reduction or dismissal of the case.
Unlike simple possession, which in this changing political climate is increasingly acceptable, possession with intent to distribute is often frowned upon. Fortunately, it can be one of the toughest types of cases to prove in the entire criminal justice system.
