If you are facing distribution charges or accused of being in possession with intent to distribute, you are up against some serious potential penalties. These are felony drug possession charges, and you are at risk of spending several years in prison if you are found guilty.
Can I be charged with intent to distribute even if I never sold or tried to sell drugs? Yes, you can. Many people are confused by charges like “possession with intent to distribute”. How do the police or prosecution know what you were intending to do with drugs in your possession?
It is surprisingly easy for the police to try to pursue a charge of intent to sell, and it has almost nothing to do with the amount of drugs you might possess. In fact, they can just say that you were by inference and circumstance.
If you have a scale, baggies, or other such tools common in drug dealing, or even just a bunch of cash, the police will often claim that suggests intent.
With marijuana, you may have less than an ounce, which is not even a crime, yet because it is in several different bags they will charge you with a felony distribution charge. Even though it was for personal use. Any of these factors could be used by the police or prosecutors in court to claim that you intended to sell the product, not use it.
The police may simply get it totally wrong, or they might do it on purpose. They can overcharge what maybe should be a simple possession case in order to squeeze a plea deal out of you, or want to push you to become an informant by threatening you with serious felony charges, however unfairly.
January 2017
Intent to Distribute Class D
Uxbridge District Court
Dismissed
August 2016
Intent to Distribute Class D
Hingham District Court
Dismissed
Massachusetts Felony Drug Distribution (Intent to Distribute) – Penalties
The penalty you face for distribution or possession with intent depends on the drug in question and the circumstances of your case. Each case is different and there is no substitute for consulting with a defense attorney.
Under Massachusetts statutes for intent to distribute drugs, you will face up to 2 years in jail for distribution or possession with intent for a first offense. This is true no matter what the drug was, whether a Class A like heroin or intent to distribute a Class B substance like cocaine or meth.
Even marijuana, which is not a crime to possess under 1 oz, can still be a felony distribution charge. Even if you only have a non-criminal amount in your possession (under 1 ounce), you can still be charged with Felony distribution a Class D substance if they suspect you of intending to sell, even such a tiny amount.
A second offense drug distribution charge will bring even more serious potential sentences. If you are charged with distribution of heroin, for instance, your second offense can carry up to 5 years in prison.
Ref: MGL § C. 94C
MGL § C. 94C Sec 32A
Higher quantities of specific controlled substances can result in an even more serious charge of drug trafficking.
Distribution (Intent to Distribute) Class D Substance (Marijuana) Charges
Even though possession of a small amount of marijuana is not a crime, and Massachusetts has legalized completely as of 12/15/16, police can still be very aggressive in arresting people for selling it.
You can be accused of distribution or (intent to distribute) a Class D substance, marijuana, based on extremely thin evidence that you ever sold or intended to sell. They can also try to charge you with conspiracy to violate drug laws, just for buying, but these charges are often wildly out of proportion and don’t stick. Many of these cases start with a criminal citation to a magistrate’s hearing.
Clerk magistrate’s hearings are very winnable (see below), so give us a call to discuss how we can help.
Yes, even for a tiny amount if weed that isn’t even a crime to possess, if the police decide to accuse you of selling it, you are facing felony charges.
School Zone – Drug Distribution Penalty Enhancements
You can face an additional mandatory minimum 2 years in prison if you are accused of selling, or intent to distribute drugs within a school zone or other restricted zone. A school zone is defined as within 300 feet of a school and other zones include within 100 feet of a public park.
The distance was reduced from down to 300 ft from 1000 ft in 2012 under Melissa’s Law, as part of an otherwise unfortunate three strikes law. It also says the school zone law doesn’t apply between the hours of midnight and 5 a.m., because who is going to be at the school during these times anyway? It’s clearly not an issue of a threat to schoolchildren.
But school zone areas and public park areas can still be defined broadly by the prosecution. A day care center could even be considered a school zone.
Within dense areas of development in the city, it is easy to be within 300 feet of a school, or 100 feet of a park. And you can bet that a district attorney will charge this in order to keep a mandatory prison term over your head, as leverage in return for forcing a guilty plea to a lesser charge, or even insisting that you act as a witness against other people, or tell them who many have sold you drugs.
If the police have been following you and pull your car over on suspicion of intent to distribute, they could even intentionally make you stop near a school or park. A car stop in such a case makes the school zone completely incidental, but they will certainly try to charge you with it. And it’s easy to do in Boston where there are parks and schools in every residential neighborhood.
They will also charge you first and do actual measurements of the distance to a park or school at a later time.
These cases can be messy. Most people charged with a school zone felony drug distribution offense didn’t even know they were in a school zone.
“I was just sitting in an apartment on the second floor!” doesn’t mean you aren’t in a school zone if there is a school or park on the next block. And it doesn’t matter whether whatever you were doing had anything to do with activity near the school, or involving kids.
Contact me for help in how we can challenge a school zone claim.
How To Fight Massachusetts Felony Drug Charges (and win)
Whether you were arrested or received a criminal citation to a clerk magistrate’s hearing, there are always defense options.
Our firm fights more cases at Clerk Magistrate’s hearings than any other law firm in Massachusetts. And these are often the best cases to take on since if you win, the charge disappears – it’s gone like it never happened.
We get calls about very trivial cases that, honestly, the police shouldn’t have bothered with. Maybe someone allegedly gave another person a bag of weed. And now they are faced with a felony distribution of a Class D substance charge.
Clerk Magistrates can often be reasonable about dispatching these cases if we can make the right argument.
Challenging an illegal search in a drug possession arrest
Did the police have permission, probable cause or a legal right to search your car, house, or person? Was the substance in plain sight, or did they have to hunt around, and they didn’t have a search warrant?
These are the first questions to investigate to determine if you may have been the victim of an illegal search and seizure. If drug evidence found was taken in an illegal search, we will file a motion to suppress and fight to get the charges dropped completely.
There are a wide variety of grounds to file a motion to suppress on a questionable search in a drug case.
- Exit Order: For what reason did the officer order you out of the vehicle?
- Questionable Stop: Why were you stopped or questioned in the first place?
- Illegal Warrantless Search: An officer needs a search warrant to find anything in a vehicle that isn’t in plain sight, with very few exceptions.
Many Massachusetts judges are very fair to defendants on illegal search issues, especially in marijuana cases, where there is frequently no evidence of a crime (since marijuana isn’t illegal) to even pursue a stop or a search.
What is an Officer Safety Search?
An officer can do a search for weapons if he has a legitimate reason to suspect a weapon exists, and therefore a danger to the officer himself. In the 1968 Supreme Court decision Terry v. Ohio, the reasonable suspicion standards and exclusionary rule, including the officer safety exception was established. Cops are well aware of how to attempt to justify these searches, and the results of these searches under the law.
We’ve had clients refuse to be searched, but the police searched anyway, claiming the officer safety exception for a warrantless search. The police officer claimed he saw a knife, which is not illegal in itself, and proceeded to do an inventory for their safety.
Limitations on the Officer Safety Exception in a Search
And even an officer safety search is limited to legitimate means to identify the possible existence of a weapon. The specific requirements must be explicitly described in a police report, down to how the officer frisks a bag, or your person, and how the officer documents the legitimate need to proceed with a more detailed, invasive search for reasons of officer safety.
For example, we recently had a client who was seen to have a pocket knife in his pocket. The client was ordered out of the car, and the rest of the vehicle and it’s contents were searched on the grounds of insuring officer safety, and that there were no additional weapons present. After looking inside a backpack, the police found about an ounce of marijuana and other items that lead to a charge of intent to distribute a Class D Substance.
However, the officer did not justify the search of the contents of the bag in his report. Under the Massachusetts case Commonwealth v. Pagan, the standards for a protective patfrisk are established. It is more than reasonable that the bag’s contents could have been frisked without opening it, and safely determined that there was not a weapon inside.
Had the officer simply written that he’d felt the bag on the outside, and was unable to determine the contents, he would have an argument that opening the bag was necessary, but he failed to do so.
Getting Intent to Distribute Charges Reduced Down to a Civil Fine
We have been able to get your charges reduced to a civil possession fine, dropping a serious felony charge down to a penalty that isn’t a crime. The defense strategy we use will depend on the specifics of your case. Contact me today so we can talk in detail and I can make some suggestions.
There are always defense tactics we can use. And no case is un-winnable. That doesn’t mean that all cases are good cases, and I will always be upfront and honest about what I think our chances are.
When you are facing charges like these, you need all the help you can get. I am ready to fight for your rights and to ensure you get the best possible results on your day in court. Call me today.
