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POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO SELL

Mere possession of a controlled substance is a serious enough offense, but possession of a controlled substance with intent to sell is even more serious. Oftentimes people are charged with this offense even when they never had the intent to sell and only intended to possess drugs for personal use. Proving a person's intent is difficult, and as we discuss below, many of the factors that the prosecution would point to as evidence of a person's intent to sell are instead easily explained in terms of a person's intent to use the drugs only for himself.

WHAT IS A CONTROLLED SUBSTANCE?

A controlled substance is a drug or class of drugs which are either wholly illegal to possess or are illegal to possess without a valid prescription. Whether a drug is considered "controlled" or not is determined by the government. The government has created five different "schedules" of controlled substances based on various factors such as the drug's potential for abuse and whether the drug has any currently accepted medical use.

In Nevada, scheduling of drugs is determined by the Nevada State Board of Pharmacy (the Board) and a specific list is maintained in Chapter 453 of the Nevada Administrative Code. Although Nevada has wholly adopted the federal Controlled Substances Act, they are still free to place greater restrictions on drugs than the federal government. In the case of Methamphetamine and Cocaine, for example, the federal government has classified the drugs generally as Schedule II drugs, whereas Nevada has classified street Methamphetamine and Cocaine as Schedule I drugs and doctor-prescribed Methamphetamine and Cocaine as a Schedule II drugs.

Schedule I drugs include drugs with a "high potential for abuse" that have no "currently accepted medical use". These drugs are considered the most dangerous and thus carry the harshest penalties. This schedule would include drugs such as Heroin, Cocaine, Methamphetamine, MDMA (Ecstasy), Marijuana, psychedelic mushrooms and LSD. For a complete list of Schedule I drugs, click here.

Schedule II drugs also have a "high potential for abuse" but have some accepted medical use. They are still considered to be extremely addictive when abused, so they are heavily regulated when prescribed by physicians. Often doctors can only write prescriptions for one month at a time and they are required to put your information into a national database in order to avoid what is commonly referred to as "doctor shopping". Examples of Schedule II drugs include doctor-prescribed Cocaine and Methamphetamine, Morphine, Demerol, Oxycodone, Vyvanse and Adderall. For a complete list of Schedule II drugs, click here.

Schedule III drugs are considered less dangerous than Schedule I or II drugs, but still have a potential for abuse. Like Schedule II drugs, Schedule III drugs also have accepted medical use. When abused, these drugs cause moderate physical addiction, but the psychological addiction can still be high. Examples of Schedule III drugs include Ketamine, Marinol and anabolic steroids. For a complete list of Schedule III drugs, click here.

Schedule IV drugs are considered to have a low potential for abuse relative to that of Schedules I through III because they have a limited potential for physical or psychological dependence. They also have accepted medical use, meaning they can be prescribed by doctors. Examples of Schedule IV drugs include Tramadol, Soma and benzodiazepines such as Xanax, Klonopin and Valium. For a complete list of Schedule IV drugs, click here.

Schedule V drugs are considered to have the lowest potential for abuse out of any of the five drug schedules due to their limited physical and psychological dependence. While many Schedule V drugs still require a prescription, some may be obtained over the counter though there may still be various limitations on a person's ability to purchase the drug. Examples of Schedule V drugs would include cough suppressants that contain small amounts of Codeine. For a complete list of Schedule V drugs, click here.

POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO SELL DEFINED

NRS 453.337 states that it is illegal for a person to possess Schedule I or II substances with the intent to sell those substances to a third party.

NRS 453.338 states that it is illegal for a person to possess Schedule III, IV or V substances with the intent to sell those substances to a third party.

HOW DO PROSECUTORS PROVE INTENT TO SELL?

In order to prove that a person had the intent to sell a drug instead of just possessing the drug for personal use, there must be additional evidence beyond mere possession. Since a person's mental state can never be known to an absolute certainty, the prosecution will point to specific facts or circumstances that would lead a reasonable person to the conclusion that the person must have intended to sell the drug. Essentially, a determination regarding mental state must be inferred from the circumstances.

What follows are some examples of particular facts or circumstances that the prosecution points to when trying to prove a person's intent to sell:

  • The Quantity of the Drug Involved: If the person has a large quantity of drugs, the prosecution will argue that the person would not have such a large amount of drugs merely for personal use. A good defense attorney would argue that the person was merely buying in bulk to save money or stocking up so as to avoid having to repeatedly put himself in harm's way by making frequent drug purchases.
  • The Way in Which the Drug is Stored: If the drug is stored in smaller, specific quantities within baggies, the prosecution will argue that the person was packaging the drug for sale and not for personal use. A good defense attorney would point to the fact that the way in which drugs are purchased from drug dealers is in the exact packaging that the prosecution is trying to use to prove the person's intent to sell. Perhaps instead the person bought a good amount of drugs for personal use and these drugs were already separated, weighed and bagged by the dealer. The person saw no reason to take the drugs out of the baggies he had purchased them in until he actually used the drug, so it was all still in individual baggies when he was arrested.
  • The Presence of Scales and Baggies: If the person also has in his possession a scale or plastic baggies, the prosecution will argue that these items were intended to be used for measuring and packaging the drug for sale to a third party. What a good defense attorney would argue is that the person possessed the scale so that he could verify the amount of the drug he was purchasing and avoid being taken advantage of. The presence of baggies can also often be explained by the simple fact that most all people possess baggies of some form in their homes for completely legal purposes such as packing a sandwich for lunch or storing extra pieces to some furniture that they assembled.
  • The Person is Carrying a Large Amount of Money: If the person is found with a large amount of money, particularly with a lot of smaller bills, the prosecution will argue that this money came from previous drug transactions and/or was meant to be used as change for future drug transactions. A good defense attorney will ask the person why he was carrying a large sum of money instead of just assuming that the prosecutor is correct. Perhaps the person works at a job where they get a lot of tips or perhaps the person was headed to pay his rent for the month and doesn't have a bank account. There are multiple valid reasons why the person may have been carrying a large sum of money that have nothing to do with dealing drugs.
  • Other Miscellaneous Facts: There may also be other facts unique to the particular situation that the prosecution may try to use to prove the person's intent to sell. The approach that a good defense attorney will take to explain these other miscellaneous facts or circumstances depends on the situation, but a good defense attorney will always go beyond the words written in a police report to find out the real explanation of the events and will advocate for his client at every opportunity.

POTENTIAL PENALTIES

The potential punishment for a conviction for possession with intent to sell varies depending on the schedule the drug falls into and whether the defendant has prior convictions.

Schedule I and II Offenses (NRS 453.337)

A first offense of possession of a Schedule I or II substance with intent to sell is a Category D felony. This felony carries a penalty of imprisonment for a minimum term of 1 year and a maximum term of no more than 4 years, and may also be fined up to $5,000 for each offense. Probation is available on first offenses.

If this is the person's second offense of possession of a Schedule I or II substance with intent to sell or if the person has been previously convicted of a felony under the Uniform Controlled Substances Act, it is a Category C felony. This felony carries a penalty of imprisonment for a minimum term of 1 year and a maximum term of no more than 5 years, and may also be fined up to $10,000 for each offense. Probation is not available.

If this is the person's third or more offense of possession of a Schedule I or II substance with intent to sell or if the person has been previously convicted two or more times of a felony under the Uniform Controlled Substances Act, it is a Category B felony. This felony carries a penalty of imprisonment for a minimum term of 3 years and a maximum term of no more than 15 years, and may also be fined up to $20,000 for each offense. Probation is not available.

Schedule III, IV and V Offenses (NRS 453.338)

Both a first and second offense of possession of a Schedule III, IV or V substance with intent to sell is a Category D felony. This felony carries a penalty of imprisonment for a minimum term of 1 year and a maximum term of no more than 4 years, and may also be fined up to $10,000 for each offense. Probation is available on first offenses.

If this is the person's third or more offense of possession of a Schedule III, IV or V substance with intent to sell or if the person has been previously convicted two or more times of a felony under the Uniform Controlled Substances Act, it is a Category C felony. This felony carries a penalty of imprisonment for a minimum term of 1 year and a maximum term of no more than 5 years, and may also be fined up to $10,000 for each offense. Probation is not available.

DEFENDING POSSESSION WITH INTENT CHARGES

Depending on the circumstances, a criminal defense attorney may be able to get your charge dismissed altogether or at least reduced to a lesser misdemeanor charge. The right attorney will be able to spot any weaknesses in the case, which will give him the leverage needed to zealously negotiate your case so as to reach the best outcome possible.

In some instances, however, it may be appropriate to take your case to trial. In those cases, remember it is the prosecutor's burden to prove the case beyond a reasonable doubt. The choice of whether to negotiate a plea deal or go to trial is one that is made only after weighing all the potential evidence and evaluating the likely outcomes should one decision or the other be made.

We have represented many individuals charged with possession with intent to sell in the Las Vegas area and throughout Southern Nevada. Call us today for a free consultation to discuss the facts of your case.

By Jenny Pandullo

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