How Can Drug Possession Be Elevated to Possession with Intent?

Drug possession charges come in two forms: possession and possession with intent. Possession is simply having drugs on your person. “Possession with intent” or “PWID” are used as shorthand for the full phrase “possession with intent to distribute.”

Possession with intent is a serious crime. It means the police believe you are in the drug business, and it comes with much heavier penalties than standard possession. It may even fall into a third category, constructive possession. With this accusation, you are not in direct possession of the drugs, but police believe you knew of them, they belong to you, and you intended to sell them.

Although the crime is serious, it is also heavily reliant on the police’s perception of events. If they accuse you of possession, they can also jump to conclusions, adding intent to your charge. Here are some ways the cops can make assumptions, adding intent to a standard possession charge.

There Is a Large Volume of Drugs

When someone has a large quantity of narcotics, the police assume it’s not for personal use. Normally, a quantity that heavy would be only for selling. Someone could simply prefer to buy large amounts infrequently, to minimize the risks involved in buying illegal drugs. They may not be involved in any financial transaction regarding the product. It won’t matter to the police. If they see a lot of product, they’re going to draw conclusions.

There Is Distribution Paraphernalia with the Drugs

Police are on the lookout for items associated with selling drugs. This includes baggies, scales, lots of small currency, and so on. The police may find only a small amount of drugs on someone, but if they encounter distribution items, they are likely to assume an intent to sell.

Reviewing the Accused’s Communications

After the police find someone with drugs, they may start investigating that person’s communications. If they see several texts, for example, that seem to indicate a drug transaction, they can add intent to the charge. The evidence can be thinner than that. Maybe they simply see many calls made to a known dealer. Instead of assuming that their perp was a buyer, police conclude that they were a seller.

Penalties for Possession with Intent

For possession with intent, the drug itself and the amount found influences the penalties. Controlled substances are classified by severity. Class I controlled substances include heroin, LSD, and ecstasy. Class II is reserved for meth, morphine, cocaine, Ritalin, and PCP. Codeine, barbiturates, depressants, and certain steroids fall under Class III. Class IV includes tranquilizers such as Valium and Xanax. Finally, over-the-counter medicines such as cough syrup fall under Class V.

When charging someone for possession with intent, police use the word “Schedule” instead of “Class,” but it essentially means the same thing. Intent to sell a Schedule I or II drug carries a harsher penalty than selling Schedule III, and so on. Some drugs, such as meth, have unique penalties, even though they fall into a certain class.

Penalties for possession with intent in Virginia:

  • Schedule I and II

5 to 40 years in prison; fines up to $500,000. For a second offense, there is a minimum sentence of 3 years in prison with a possibility of a life sentence. For a third offense, there is a minimum sentence of 10 years in prison with a possibility of a life sentence.

  • Schedule III

1 to 10 years in prison; fines up to $2,500

  • Schedule IV

1 to 5 years in prison; fines up to $2,500

  • Schedule V

Up to 1 year in jail; fines up to $2,500

  • Methamphetamines

5 to 40 years in prison; fines up to $500,000. For a second offense, 10 years to life in prison. Third offense, minimum sentence of 3 years in prison with a possibility of a life sentence.

  • “Large Volume” Dealer

20 years to life in prison; fines up to $1,000,000

  • Transportation of controlled substances

Depending on the drugs, 5 to 40 years in prison; fines up to $1,000,000

Defenses for Possession with Intent

As you can see, police take the selling and distribution of drugs very seriously. If you’ve been accused of this crime, seek legal representation immediately. You need a skilled attorney who can argue your innocence and possibly keep you from facing overwhelming penalties. Here are some defenses you can discuss with your lawyer.

You Did Not Intend to Distribute

Above, we mentioned the possibility of holding a large amount of drugs for your own use. This could be a valid argument for your lack of intent and may reduce the charge to simple possession. If the Commonwealth cannot rebut this theory of innocence as to intent, you could argue that you were not directly involved in its distribution.

You Were Unaware of the Drugs

It’s not uncommon for dealers to hide their product, and they often use others to protect themselves. There is a possibility that someone hid drugs in your home, car, etc. without your knowledge, intending to retrieve them later.

The Drugs Were Not Yours

How are the police sure that you owned the drugs at all? If you share your living space with someone else, and the cops find drugs in the kitchen, they may have no reason to connect those drugs to you. Just being near drugs does not mean you possess or intend to sell them.

Police Broke The “Plain View” Rule

Typically, if police make an arrest for one thing, they can add charges for anything they plainly see. If they, for instance, enter a home to make a robbery arrest, they might see drug paraphernalia directly on the table. In that case, they can add possession to the charges.

What they cannot do, however, is go beyond the bounds of a warrant. If they are allowed to search the kitchen, they cannot wander into the bathroom. Anything they find elsewhere, not in plain view, could potentially be thrown out as evidence.

The Paraphernalia Was Not for Distribution

As mentioned above, items meant for distribution can be assumed an intent to sell. Just because you had baggies or a scale does not automatically mean you were dealing drugs. There could be any other use for those items. This can be an easy argument to make, especially if alleged drugs were in small amounts. Perhaps you run a small Etsy business, selling hand-crafted items that require weighing and packaging, or perhaps you weigh the drugs you wish to buy so that you can confirm you’re not being ripped off.

Your Communications Were Unlawfully Acquired

To read your texts or go through your phone records, police must make a case and receive authorization. If, during your arrest, an officer grabbed your phone and started reading your messages, this could be an unlawful invasion of privacy. Regardless of the content of your communications, if they were acquired unlawfully, they can be dismissed in a trial. Have your attorney investigate the cops’ methods. If they find something improper, they can use it toward your case.

The Police Were Guilty of Entrapment

Police have the right to set people up through deception, and they can lie about being law enforcement. What they cannot do, however, is coax you into a crime. If you were approached by an undercover officer who lured you into a crime you wouldn’t have otherwise committed, that is entrapment. Tell your attorney the facts of what happened before your arrest. If they see evidence of entrapment, they can use it to help defend you in court.

If you’ve been accused of possession with intent, contact our office immediately. You need a skilled, strong defense to preserve your freedom, and we may be able to help. Our number is (540) 827-4446, and you can reach us online.

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