Sep 23, 2019 Possession versus trafficking of drugs – Fairfax criminal lawyer weighs in
Possession and trafficking drug prosecutions – Fairfax criminal lawyer on attacking intent to distribute allegations
Possession of drugs is a crime involving knowledge, dominion and control over the alleged contraband. As a Fairfax criminal lawyer, I know that the more seriously-sentenced crime of possession with intent to distribute (PWID) controlled substances or marijuana involves the extra element of intention. Va. Code § 18.2-248.
A conviction for any crime cannot be obtained without the prosecutor’s proving the case beyond a reasonable doubt. The totality of the circumstances must be considered by the jury or the judge at a bench trial when possession with intent to distribute drugs is alleged, regardless of how knee-jerk have been the prosecutor or police in deciding to pursue a prosecution for something more serious than simple possession for personal use.
Factors to consider in attacking allegations of possession with intent to distribute drugs- Weight
The criminal defense needs to be ready to raise and attack the following circumstances in prosecutions for possession to distribute drugs starting with weight. Significant weight of the alleged drugs by itself does not constitute intent to distribute. For instance, when a medicinal user of marijuana finds the right blend of cannabis sativa and cannabis indica at the right price and purity, the user might be ready to buy more than two or three ounces, which can last for over a month or two but still not be overly expensive for a person earning a good income.
On the topic of weight in possession with intent to distribute cases, the packaging material can add greatly to the weight of marijuana, cocaine, heroin, LSD, and all other drugs. Failure to determine the net weight of the alleged marijuana or controlled substance needs to remain in the lap of the prosecution, seeing that the seized substances remain in the exclusive control of the government, starting from seizure by the police followed by transportation to the Virginia Department of Forensic Science (DFS) for testing.
The Virginia DFS does not generally require measuring net weight of alleged drugs
However, where the weight of the alleged marijuana or controlled substance does not appear to be less than or equal to that of the packaging in possession with intent cases, the DFS does not require its personnel to determine net weight, versus packaged weight, of alleged marijuana and controlled substances: “Weights of evidence will be measured prior to sampling. The gross weight of the evidence, including innermost packaging, should be measured whenever possible. The net weight of the material may be measured at the discretion of the examiner.” DFS Controlled Substances Procedural Manual at 4.2.
Additional factors to consider when PWID is charged
When possession with intent to distribute marijuana or controlled substances is charged, other factors to consider include cash found on or near the defendant (many legitimate purposes exist for carrying large amounts of cash); presence of paraphernalia for consuming the substance; presence of scales (which can be legitimately possessed for weighing non-contraband items and for assuring the dealer is not ripping off the consumer); packaging (presence of many ziplock bags can be for separating dosages rather than for sales); notes and communications indicating purchase and sale of the substance; and variety of marijuana in small doses (which can indicate personal use intent, including sampling of various cannabis strains).
Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, drug possession, and DUI prosecutions. For a free in-person consultation with Jon Katz to discuss your pending criminal court case, please call his staff at 703-383-1100 to schedule a meeting.