Drug Distribution

by Jamison Koehler on October 3, 2009

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.

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