The police will often find drugs on a person but won’t see them in the act of selling the drugs. You can still be charged with a crime called possession with intent to deliver (sell) those drugs.
What does possession with intent to deliver mean? Possession with intent to deliver is the term meaning a person is accused of having drugs and planned to sell the drugs.
Possession with Intent to Deliver
For a person to be convicted of possession with the intent to deliver a controlled substance, the prosecution must prove beyond a reasonable doubt that,
- A person possessed a controlled substance, (see possession section below),
- The person knew that he or she possessed the substance at issue
- The person intended to deliver (sell) the substance to another person
- The controlled substance was in a certain amount (weight = potential penalty), and
- The person was not legally authorized to deliver the substance.
How Does the Prosecution Prove This?
The answer of whether someone is in possession of drugs with intent to sell depends on the facts surrounding the person and the possession. Things that may infer the intent to sell:
- Were there different containers or baggies?
- Were the drugs divided into different baggies?
- Were there mixture substances for preparation to other drugs? For example, substances to either cut heroin or to turn cocaine powder into crack
- Was there a scale?
- Are there cell phone text messages discussing purchases?
- Was the person found in a “high crime area,” or “places known for narcotic transaction activity”, as police may describe it
- Were there weapons such as firearms?
- Were there large amounts of cash, especially low dollar bills?
No one of these objects listed above (such as scale, baggies, etc.) would necessarily mean a person was about to sell drugs, and even all of them together would not mean a person is about to sell drugs. But these are the types of elements the prosecutor will argue that a person intended to sell drugs.
Consider this for example. People using drugs may often carry a scale to ensure they are not being ripped off by drug dealers. Or, a person purchasing drugs for long-term use might purchase drugs that are sold in several different baggies. Just because a person has drugs divided doesn’t mean he intends to sell them – he could have just purchased those drugs and they came in divided packages.
What Might Show You Were Not in Possession With Intent to Deliver?
There may be objects on a person that show a person possessed drugs for personal use rather than to sell the drugs. For example, a person might have a heroin kit, with a spoon, lighter, and syringe. Or a person might have a pipe or bowl to smoke marijuana. These items indicate a person was a user rather than a seller.
What Does Possession Exactly Mean?
There are two legal ways a person can be in possession. First, there is actual possession. Actual possession is where you are literally holding drugs or it’s in your pocket. And second, there is constructive possession. Constructive possession means you may not have it in your hands, but you have ownership rights over the drugs and access to it. Obviously, if the substance is not in your hands it’s a little more difficult to prove it’s yours.
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Sam Bernstein is a Criminal Defense and Marijuana Attorney in Ann Arbor.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.