Disorderly conduct is a really annoying charge.

The first problem is that the offense is usually so broad and poorly defined that it is too easy for police to charge and too easy for the government to prove at trial.  For example, since intent to cause a “public inconvenience” is a major element of the offense in Pennsylvania, the problem I had in Philadelphia was that any police activity, any gathering of curious onlookers as a result of this activity, and anything less than absolute compliance by the suspect with the officer instructions inevitably resulted in the inclusion of this offense in the list of charges against a client.

The second problem with the offense is that, while it is only a minor misdemeanor, an arrest on this charge often serves as the legal basis for more serious charges.  For example, once the police arrest the suspect for disorderly conduct, they are now legally entitled to search him for weapons and contraband.  This means that an arrest for disorderly conduct often leads to felony drug and firearms charges.

The good news in this city is that the D.C. Court of Appeals issued a decision last week, In Re T.L., in which it narrowed the scope of the offense in the District.  Specifically, it held that, in order to satisfy the “breach of peace” requirement under the statute, the government must prove either that (1) the defendant’s speech or conduct was likely to trigger violence or (2) it was “unreasonably loud and disruptive.”

In D.C., the government must prove two elements in order to secure a conviction for disorderly conduct.  The government must first prove specific intent; in this case, that the defendant acted with intent to provoke a “breach of the peace” or under circumstances such that a breach of peace might occur.  Second, the government must prove that the defendant either: (1) acted in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregated with others on a public street and refused to move on when ordered by the police; (3) shouted or made a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interfered with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of such person’s pocketbook or handbag; or (5) caused a disturbance on public transportation.

In the case at hand, the Court was faced with situation in which the defendant had been stopped on the street by a police officer who confiscated a large sum of cash from the defendant.  When the defendant objected, calling out loudly for his mother to come help him, the officer placed him under arrest for disorderly conduct.  Upon searching the defendant incident to arrest, the officer discovered 24 ziplock bags of crack cocaine hidden in the defendant’s pants and placed him under arrest for possession of cocaine with the intent to distribute.

In denying the defendant’s pretrial motion to suppress the evidence, the trial court reasoned that, because the defendant “continued to scream and shout and began drawing a crowd of people to come out from the neighborhood,” the officer had probable cause to arrest him for disorderly conduct.  The recovery of the cocaine was then legally valid under the “search incident to arrest” exception to the Fourth Amendment requirement for a warrant.

In overturning this decision, and in vacating both the misdemeanor and felony charges, the Court of Appeals spelled out two ways in which the government could have proven the “breach of peace” requirement.

The first way would have been to prove that the defendant’s speech or conduct was likely to trigger violence.  A police officer who has “objective reason to believe that violence is imminent need not stand by and await its outbreak before he attempts to control the situation with a disorderly conduct arrest.”  However, in this case, the Court held that the government failed to meet this burden:  “[T]hough T.L. loudly protested Officer Elliott’s seizure of his money (and called upon his mother for help), he did not urge the onlookers to intervene on his behalf or otherwise manifest an intent to provoke them to violence.  And while T.L.’s yelling may have annoyed the neighbors who were attracted to the commotion, there is no evidence they were hostile or likely to become violent.”

The second way would have been for the government to prove that the defendant’s speech was “unreasonably loud and disruptive.”  “The government has a substantial interest in protecting its citizens from unwelcome noise, an interest that is perhaps at its greatest when government seeks to protect the well-being, tranquility, and privacy of the home.”

Again, however, the Court held that the government had not met this requirement in the T.L. case.  It was the police officer’s wrongful conduct – the confiscation of the defendant’s money without cause to do so – that created the disturbance in the first place. And the defendant’s yelling lasted only a few minutes before he was arrested.  The Court therefore held that the defendant’s “loud but peaceful protestations and calls for his mother’s help in reaction to [the officer’s] unjustified seizure of his money were a response to an emergency situation and were not unreasonable under the circumstances.”

I used to hire a particular expert witness in Philadelphia on drug distribution cases, a guy named David Leff.  Leff was so good — that is, he had so much credibility with judges — that I rarely had to call him to the stand.   Sometimes all he needed to do was walk into the room and take a seat in the gallery.  The prosecution would then withdraw the felony charges and proceed on simple possession.

There is no need for an expert witness in a misdemeanor drug case.  Your client either possessed the drugs or he didn’t. Where an expert witness comes in handy is when your client is carrying a large amount of drugs on his person and the prosecution wants to convict him of felony drug distribution even though your client was never seen engaging in any type of drug transaction. Since the police can’t claim to have actually seen him deliver any drugs, the prosecution wants the judge or jury to infer that, given the large amount of contraband on your client’s person, your client must have possessed the drugs with intent to distribute them.  NOBODY could possibly have intended to use that large an amount of drugs personally.

Because, the reasoning goes, addicts use drugs as soon as they buy them. They don’t buy for friends. They don’t buy in bulk, despite the discounts they could get by doing so.  No, they are thinking day-to-day, not planning for tomorrow. Users don’t try to minimize the number of trips they make to the drug corner even though they subject themselves to the risk of arrest each time they go.

These are the government’s arguments anyway.  And that’s why you need an expert like David Leff. An expert can debunk some of these myths.

It doesn’t help your case if the client had a large amount of money on his person without a credible explanation as to how he or she came into possession of it.  After all, as the government’s witness will testify, addicts go through every penny that they have.  And you can forget about using an expert if your client was found in possession of “unused packets,” cutting agents, razor blades, or any other paraphernalia associated with the packaging and sale of drugs.  After all, the expert has a reputation to maintain. (I would speak of “user” paraphernalia  — a crack pipe or bong, for example — but, for some reason, in cases involving a large amount of drugs, those items don’t always make their way onto police paperwork.)

You can sometimes have some fun with the government’s “expert” witness. I put the term in quotation marks because, at least in Philadelphia, the government’s “expert” is often anointed on the spot when the real expert doesn’t show. The officers so anointed are usually experienced narcotics officers, so yes, they do know a thing or two about drugs. But their perspective is derived largely from their experience in arresting people and charging them with drug distribution no matter what the suspect’s actual intentions are.

“No, Your Honor,” the expert will say, lowering his voice for authority.  “I have NEVER known a drug user to possess 15 packets of crack cocaine.”  No?  But, of course, you don’t know my client.  You don’t know his drug habits.  And you would agree with me that a heavy user of crack cocaine could go through X number of packets in a day, right?

This last question puts you in a no-lose situation. If the witness agrees with you, he or she has just thrown the entire premise of the government’s case into doubt. If he doesn’t agree with you, you can impeach the witness with your expert. Maybe the government’s witness doesn’t know so much about the drug habits of addicts after all.

Making the case that your client is an addict, not a drug dealer, can put you in an awkward position. You are, after all, on the public record. And, by calling the client’s friends or family members to the stand to testify to the client’s drug habits, you are forever memorializing your client’s illegal activities. At the same time, assuming that you have already conceded your client’s possession of the contraband in this particular case, being found guilty of misdemeanor drug possession is a helluva lot better for your client than a felony conviction for drug distribution.

The prosecutor will sometimes spend an inordinate amount of time “qualifying” the witness as an expert. You can turn this to your advantage. Let the expert go and on about how much he knows about drugs and drug distribution.  Then test the extent of that knowledge. You can sometimes get him with a simple question. Okay, Mr. Expert. How many grams are there in a pound? How many ounces are there in an “eight-ball”?  You may be surprised by how many “expert for a day” witnesses have trouble answering these questions.

If an expert witness is helpful in a drug distribution case, he or she can do even more on a DWI or DUI.  Almost everything about a drinking-and-driving case is supposed to reflect hard science. According to the National Highway Traffic Safety Administration, for example, proper administration of the standardized field sobriety test is supposed to indicate a base-line level of intoxication within a reasonable degree of certainty. But, as the training manual used in D.C. to train police officers itself acknowledges, any deviation from the prescribed procedure seriously undermines the validity of test results. Police officers are not always well-trained. And they love to freelance, adding their own particular twists to established procedures.

The science associated with breath tests is even more complicated, as the recent problems with the Intoxilyzer 5000 EN in D.C. demonstrate. Use of a suspect’s breath alcohol content as a surrogate measure for blood alcohol content requires a number of complicated extrapolations. As I have already discussed elsewhere on this blog, any problem in calibrating or operating the machine would undermine the validity of test results.  Again, that’s where expert testimony comes in.

Expert witnesses are unfortunately very expensive. Not everyone can afford one. An expert for a DWI case in D.C., for example, will cost thousands of dollars. At the same time, it is almost always money well spent. It can sometimes be the difference between conviction and acquittal.

A defendant can in some cases be convicted of a criminal offense in Washington, D.C. for doing nothing more than possessing a particular object or substance.

According to D.C. law, for example, it is illegal to possess marijuana, heroin, cocaine and other substances that are controlled under the D.C. Controlled Substances Act.  Possession of other substances, such as oxycontin and percoset, is illegal without a valid prescription.

In addition to certain drugs and other controlled substances, D.C. law restricts the class of people who may be in legal possession of firearms, guns, ammunition, and dangerous weapons.  It is, for example, illegal for a drug addict or person who has been convicted of a felony to possess a firearm.  D.C. law also restricts the methods, means or modes of carrying a firearm, gun or weapon.  For example, carrying a firearm without a valid license pistol would subject a person to the criminal charge of carrying a pistol without a license (CPWL).

For the purposes of D.C. law, there are two forms of possession:  (1) actual possession, and (2) constructive possession.

Actual possession is obvious.  This means that the person has physical possession of tangible property by, for example, holding it in his/her hand or by carrying it on his/her body or person.

“Constructive possession” is a little bit more complicated.

Courts will often “construe” legal terms, concepts or situations in order to achieve some type of judicial or equitable objective.  In the area of landlord-tenant relations, for example, a court might find that a tenant who is still in actual physical possession of a particular apartment has in fact been “constructively evicted” from the apartment due to unlivable conditions caused by the landlord’s neglect.  Likewise, in the area of trusts and estates, a court might find that a “constructive trust” exists even where there is no actual trust just because the court believes this would be the fair thing to do.

This is the same idea when applied to criminal law.  The defendant does not have to be in actual physical possession of the object if the prosecution can prove that the person both knew about the object and had the “power and intent at a given time to control” it.  A firearm in your bedroom closet or a packet of cocaine on a park bench next to where you are sitting can both be found to be in your constructive possession for purposes of criminal prosecution.

In addition, assuming both have the ability and intent to control the property, two or more people can be found to have joint constructive possession of a single object.  A court could find, for example, that the driver and front-seat passenger both have constructive possession of a firearm in the console between them.

However, merely being near an object or knowing of its location is NOT sufficient to prove possession.  As the D.C. Court of Appeals held in Rivas v. U.S., 783 A.2d 125, 128 (D.C. 2001)(en banc), intent to control the object, as well as the power to control it, is an essential element that the prosecution must prove beyond a reasonable doubt.  Specifically, the court held that “there must be something more in the totality of the circumstances – a word or deed, a relationship or other probative factor – that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the [person] intended to exercise dominion or control over the [object], and was not a mere bystander.”  Another opinion, Guishard v. U.S., 669 A.2d 1306, 1312 (D.C. 1995), has held that the person need to have “intended to guide its destiny.”

There are two basic drug offenses in the District of Columbia: (1) drug possession, and (2) drug dealing. Today’s entry will deal with the misdemeanor offense of drug possession.

The crime of drug possession requires: (1) knowing or intentional (2) possession of (3) controlled substance. The defendant can use the affirmative defense that the contraband was possessed pursuant to a valid prescription.

First, the prosecution needs to prove that the defendant “possessed” the substance. This could be actual possession. The defendant could, for example, have the drugs in his hands or in his pocket at the time he is stopped by police. Alternatively, the drugs could be in the defendant’s “constructive possession.” This means that, while the contraband may not actually be on the defendant’s person, the defendant knew where the drugs were and had both the ability and the intent to exercise control over the drugs.

The second thing the prosecution must prove is criminal intent, or mens rea. There could be “negligent” possession in which the defendant should have known that the substance he possessed was contraband. There could be “reckless” possession in which the defendant disregarded specific indications that he possessed an illegal substance. Or, as in this case, the prosecution is required to prove “knowing” or “intentional” possession by the defendant; that is, that the defendant knew very well that the substance he possessed was contraband and that he intended to possess it.

Since no one can read the defendant’s mind to determine exactly what he knew or intended, the prosecution will use circumstantial evidence to prove this element of the offense. If the defendant is holding the contraband in his hand, the judge or jury can fairly assume that the defendant knew about the drugs and intended to have them in his hand. That would be knowing or intentional possession. The judge or jury can also look to the defendant’s behavior. Did he run away or attempt to hide the drugs when confronted by the police? Such actions could indicate consciousness of wrong-doing.

At the same time, the defense can attempt to prove that, while the contraband may in fact have been in the defendant’s possession, this possession was not knowing or intentional. Say, for example, that the defendant borrowed a friend’s coat and, unbeknownst to the defendant, there was contraband in one of the pockets. If the defense is successful in convincing the judge or jury of this explanation for the defendant’s possession of the contraband, the prosecution will have failed to make out the necessary mens rea.

The third and final element the prosecution must prove is that the drug recovered from the defendant is a “controlled substance”; that is, that it is included on the list of substances that are proscribed for personal possession without a valid prescription by the D.C. Controlled Substances Act.

The Controlled Substances Act groups substances that a person is not allowed to possess without a valid prescription into five categories – or “schedules.” Schedule I includes those substances (e.g., LSD and certain opiates) for which the legislature has determined there is a high potential for abuse and no accepted medical use in treatment. Schedule II includes substances (e.g., oxycodone, amphetamines, PCP, and some opiates) for which there is high potential for abuse and only severely restricted uses in medical treatment. And so on to Schedule V, which includes controlled substances with a low potential for abuse, many uses in medical treatment, and low potential for physical or psychological dependance.

In order to prove this element of the crime of illegal possession, the prosecution must prove two things. First, it must prove that the contraband recovered from the defendant is in fact one of the substances included in the Controlled Substances Act. It can do this by admitting the results of a laboratory test proving that the substance recovered from the defendant was, for example, heroin, marijuana, or cocaine. Second, the prosecution must prove that the substance that was tested was in fact the substance that was recovered from the defendant. While a fuller discussion is beyond the scope of this entry, this is what is known as the “chain of custody.”

Given the complexity of the prosecution’s burden of proof, you can see that there are many opportunities for defense counsel to challenge the prosecution’s case. In addition to each of the three elements of the crime of illegal possession described above, defense counsel can also make the affirmative defense that the defendant had a valid prescription at the time he was stopped by police. I will deal with affirmative defenses in later entries.

Sometimes, after the pre-trial motions have been litigated and any plea bargaining negotiations have been concluded, a defendant needs to have his or her day in court.

The Sixth Amendment guarantees the right to a jury trial for “all” criminal offenses. However, the U.S. Supreme Court has interpreted this requirement to apply only to “serious” criminal offenses. “Serious” criminal offense is one carrying a maximum statutory penalty of greater than six months of incarceration.

This means that misdemeanor charges in the District of Columbia will be tried in front of a judge. (A trial in which the judge both presides over the trial and makes the finding as to the defendant’s guilt is often referred to as a “bench” trial.) It means that a defendant facing felony criminal charges in D.C. will need to decide between a judge trial and a jury trial.

Only the defendant can make this decision. There are certain decisions affecting a trial that are made by defense counsel and other decisions that are to be made by the defendant. Defense counsel, for example, will have final say on which trial strategies to use. Decisions involving constitutional rights, such as in this case, will always be made by the defendant, presumably in consultation with his or her lawyer.

What’s the right decision?

Drug cases in D.C. are usually based almost entirely on police officer testimony. Police officers are typically the ones who observe the illegal activity. Police officers make the arrest and test the seized substances. And they are much easier for the prosecution to bring to court.

While the decision will depend on the specific facts of the case, taking all sorts of factors into consideration, I find that, for the defendant, cases revolving around the credibility of police officer testimony are often better tried in front of a jury. Doesn’t it make sense that members of a jury might be more skeptical of a police officer’s testimony than a judge? At the same time, cases involving complicated legal issues that might be beyond the understanding of many jurors might be better tried in front of a judge. Again, these are just generalizations. The defendant should consult closely with his or her lawyer in making this very important decision.

Many people assume that if the police did not read the defendant his or her Miranda rights (“You have the right to remain silent,” etc.) during any phase of police investigation, the whole case will be thrown out. This is not true. In fact, any statements the defendant or any co-conspirators make would normally be admissible at trial as an exception to the general prohibition on the use of hearsay. Miranda applies only to cases in which the defendant is both in police custody (not free to leave) and being interrogated (asked specific questions about criminal activity). This means that if the police stop a person on the street and ask about criminal activity and the person blurts out that the drugs are not his, the person’s statement will probably be admissible at trial.

Despite the limited scope of the Miranda rights, defense counsel sometimes litigate a motion to suppress any statements the defendant may have made in response to police questioning AFTER being taken into custody but BEFORE being read the Miranda rights. Depending on the circumstances, counsel may also challenge the voluntariness of the defendant’s waiver of his or her right to remain silent. How long had the defendant been in custody before being read his rights? Had the defendant made any statements in response to police questioning prior to those rights? Was the defendant kept in isolation for a long period of time? Was the defendant threatened or promised something in exchange for agreeing to waive his or her rights?

If the court finds either that the Miranda rights were never read or that the defendant did not knowingly and voluntarily waive the right to remain silent, the court could exclude any resulting statements from use at trial.

While on the subject of statements, I’d like to re-emphasize the importance of a defendant exercising his or her right to remain silent. As noted before, police officers are professionals. They know how to get people to talk. And people often don’t realize that seemingly harmless statements can often prove very damaging at trial. The same is true of supposedly exculpatory statements. For example, a defendant who claims that he saw someone else commit the crime has just admitted that he was present at the scene.

Again, the best thing to do when taken into custody by police is, first, to tell the police you will not make any statement until your lawyer is present and, second, to exercise that right. Do not be fooled by any promises of leniency by the police in exchange for your cooperation. It is the prosecutor who has the ability to exercise that leniency, not the police.

One key to successfully defending drug cases is to keep out as much evidence as possible from the prosecution’s case at trial. Trials are basically a struggle between the two sides as to what evidence comes in and what evidence does not come in. That’s why the Rules of Evidence are so important in litigation. And in criminal proceedings, the prosecution has a significant burden of proof at trial – beyond a reasonable doubt. Defense counsel wants to give the prosecution as little as possible to work with at trial. It will be particularly successful if it can suppress evidence (that is, preclude it from ever being admitted at trial) before the trial even begins.

Physical evidence plays a particularly significant role in drug trials. After all, the core element of a drug charge is whether the defendant either possessed a controlled substance or distributed it. The prosecution will have a difficult time meeting its burden of proof without evidence of the substance in question. Other evidence, such as incriminating statements by the defendant or a co-conspirator of the defendant, can also play an important role.

The first opportunity to challenge the admissibility of the evidence at trial is through a Motion to Suppress or some other motion in limine (that is, a motion that is litigated before trial, outside the presence of either the judge or jury that will hear the case). In a drug case, defense counsel will typically challenge the evidence as being collected as the result of an illegal search warrant or pedestrian/car stop. Defense counsel might also challenge the admissibility of any incriminating statements made by the defendant as either un-Mirandized or as “tainted fruit” of the poisonous tree (as discussed in one of my earlier posts).

Search Warrant

If the evidence in question was collected as the result of a search warrant, defense counsel could use a Motion to Suppress to challenge the validity of that warrant. Was it, for example, approved by a neutral and detached magistrate? Was there probable cause underlying the warrant? That is, were there sufficient facts – as opposed to mere allegations or conclusions — stated in the affidavit of probable cause? Was the warrant executed in a timely fashion after it had been issued? Did the warrant describe with particularity the place to be searched and the items that were to be seized?

These are constitutional requirements that apply to all states. If defense counsel is successful in challenging one or more of these requirements, the evidence should be ruled inadmissible at trial. If the prosecution’s case is based entirely on this inadmissible evidence, it will not have a case and the charges should be dismissed.

Pedestrian/Car Stop

The prosecution might also be basing its case on physical evidence or statements that resulted from the detention of a suspect on the street or in a car. If defense counsel can successfully challenge the legality of the initial stop of the person, it can prevent the prosecution from introducing evidence collected as a result of such an illegal “seizure” at trial. Again, if the “suppressed evidence” is critical to the prosecution’s case, the prosecution might have no choice but to either appeal the court’s finding of illegality or dismiss the charges.

Defense counsel will take the same approach here as I discussed in an earlier post on Motions to Suppress in the DUI/DWI context. That is, defense counsel will begin with the legality of the stop itself (was there reasonable suspicion or probable cause to stop the person to begin with?) and then challenge each subsequent decision made by the police officer to further detain the individual. The prosecution must show that there was in fact reasonable suspicion or probable cause for each and every stage of the person’s continued detention. After all, if the person committed a simple traffic violation, unless there was further reason to detain the person, the police officer should have issued a traffic ticket and sent the motorist on his or her way.

Un-Mirandized or coerced statements can also be the subject for a strong Motion to Suppress, but, because these are complicated issues, I will deal with these issues in a separate entry.

The penalty in D.C. for a conviction for drug distribution or possession with intent to distribute depends on the type of drug involved. In earlier posts, I described how the D.C. Code groups controlled substances into five schedules depending on the drug’s potential for abuse and its level of acceptable medical uses in treatment. The most serious drugs – those with a high potential for abuse or with no accepted medical uses in treatment – are in Schedule I. The least serious drugs – those with relatively low potential for abuse and many accepted medical uses – are in Schedule V.

A first conviction for drug distribution of a Schedule I or II substance that qualifies as a “narcotic or abusive drug” carries a maximum penalty of 30 years in prison and a maximum $500,000 fine. The maximum sentence for a conviction for a Schedule I, II, or III substance that is not a “narcotic or abusive drug” is 5 years along with a maximum $50,000 fine. The maximum penalty for a Schedule IV substance is 3 years and $25,000 fine, and the maximum for a Schedule V substance is 1 year and a $10,000 fine.

Distributing a counterfeit substance or attempting or conspiring to distribute a controlled substance carries the same range of penalties as described above.

The maximum penalty is doubled for a second or subsequent conviction of drug distribution. The maximum penalty can also be doubled for distributing drugs to minors or distributing in a drug free zone.

The maximum penalty for a first conviction of simple possession in the District of Columbia, regardless of the substance involved, is 180 days of incarceration, with a maximum fine of $1000. The maximum penalty for a second or subsequent conviction would be double that – a maximum of 360 days of incarceration and a $2000 fine.

If the person found guilty of simple possession has never been convicted of a drug offense before, either in D.C. or in any other state, the court can put the person on probation for up to a year and defer an adjudication of guilt. If the person successfully completes the probationary period, the court can dismiss the case, and the person can have the arrest completely expunged from his/her record. The court can also dismiss the case early, before the expiration of the probationary period, if the person seems to be doing very well. If, however, the person violates probation, the court can enter an adjudication of guilty without any further proceedings and sentence the person accordingly.

The second major drug offense in the District of Columbia is the felony charge of drug distribution or possession with intent to distribute (PWID) – what we generally refer to as “drug dealing.”

In order to secure a conviction for this offense, the prosecution must prove that the defendant (1) knowingly or intentionally (2) manufactured, distributed or possessed with intent to distribute (3) a controlled substance.

Two of the elements are identical to simple possession, and, because I dealt at length with these two issues in an earlier entry, I’ll just summarize them here. First, with respect to the defendant’s criminal intent (or mens rea), the prosecution must prove that the defendant either knowingly or intentionally distributed illegal substances. Second, the prosecution must prove that the substance was in fact one of the substances that is proscribed by the D.C. Controlled Substances Act.

What distinguishes this offense from simple possession and what makes this crime a felony instead of a misdemeanor is the second element; namely, the requirement that the defendant either manufactured, distributed, or possessed with intent to distribute.

Unlike courts in Pennsylvania and in some other states, D.C. courts define “distribution” very broadly. It includes the type of transaction we normally associate with drug dealers, such as the sale of drugs on a street corner typically in exchange for money. It can also include the passing of an illegal substance from one person to another (for example, drugs passed from one user to another) without any apparent type of compensation or exchange.

There doesn’t have to be a transaction under the “possession with intent to distribute” provision. Say, for example, that the defendant is arrested on another charge and, while searching the defendant as part of that arrest, the police recover 40 packets of cocaine from the person’s jacket. No one can really tell you what the defendant was planning to do with the 40 bags. At the same time, based on the dubious assumption that drug users do not possess large amounts of drugs at any one time, the court can infer from a large amount of substances confiscated that the defendant was planning to sell them.

The prosecution’s case will be stronger if it can also introduce other evidence indicating intent to sell, such as the presence of drug-packaging materials (unused ziplock packets, scale, cutting materials) or large amounts of money. In addition, the prosecution and/or the defense will often introduce the testimony of an expert in such cases. Typically, the prosecution’s expert will describe the factors he or she considers in coming to the conclusion of possession with intent to sell. The defense expert will usually testify that the amount of drugs confiscated could just as easily be consistent with personal use.

Wrapping up the discussion on drug dealing, I should note that distributing a “counterfeit” substance carries the same penalties as distributing controlled substances. There are also variations on the distribution/possession with intent to distribute offense, along with enhanced penalties, for, among other things, enlisting minors in the illegal sales of narcotics, selling drugs to minors, and selling drugs in a school zone.