Drug Crime Laws

Federal and state laws often impose harsh penalties for offenses involving controlled substances. In addition to prison time and fines, a conviction may cause challenges in key areas of life, such as getting a job, pursuing an educational degree, or renting an apartment. Even when a case seems cut and dry, though, a defendant may have a plausible path to getting the charges dismissed or reduced. They should contact an attorney to discuss their situation rather than communicating directly with the police.

Types of Drug Crimes

While each jurisdiction has its own list of offenses involving controlled substances, three of the main types of drug crimes are possession, trafficking, and manufacturing. A defendant may be charged with possessing a controlled substance even if it was not on or near their person. Under a theory of constructive possession, a prosecutor may be able to get a conviction by proving that the defendant knew about the drugs and had the ability to control them.

Trafficking is a more serious offense. This generally means that the defendant participated in selling, dispensing, delivering, transporting, or otherwise distributing controlled substances. Evidence supporting a trafficking charge might include large quantities of drugs, records of transactions or customers, multiple containers or packages for storing drugs, equipment used to measure the drugs, or large, unexplained amounts of cash.

Meanwhile, someone who knowingly or intentionally participated in making a drug might face a manufacturing charge. Evidence supporting drug manufacturing might include equipment or precursor chemicals used to make the drug. Like trafficking, manufacturing tends to carry heavier penalties than simple possession.

Examples of Drug Crimes

Here is a look at what these offenses might look like in a real-world situation:

Possession: An officer asks Phil for proof of insurance as part of a traffic stop. When Phil opens the glove compartment to get the document, a baggie of cocaine falls out.

Trafficking: Phil tells the officer that he got the cocaine from his friend Patrick. The police search Patrick’s house and find scales and a stack of baggies containing cocaine. A search of his laptop reveals a list of customers with notes about prices and quantities.

Manufacturing: The search of Patrick’s laptop also reveals a recipe for making cocaine. The police then find a makeshift lab with precursor chemicals in a shed on Patrick’s property.

Defenses to Drug Charges

One of the most common defenses to a drug charge involves an alleged Fourth Amendment violation. This constitutional provision protects citizens from unreasonable searches and seizures by law enforcement. If the police conducted an unconstitutional search, the defendant probably could persuade the court to suppress drugs, paraphernalia, or other evidence seized during the search. A prosecutor then might not be able to get a conviction.

In other cases, a defendant might challenge the mental state element. For example, a possession charge might fail if the defendant did not know about the presence of the drugs in an area under their control. A trafficking charge might fail if the defendant thought that they were delivering legitimately prescribed medications rather than illegal drugs. However, this argument may not work if the defendant actively tried to avoid actual knowledge of the illegal activity.

A defendant also might argue that they were “entrapped” (induced) by law enforcement into committing a crime that they would not have committed otherwise. Or they might point out any questionable findings or analysis in the lab report supporting the charge.

Sometimes a defendant can raise a reasonable doubt about the quantity of the drugs at issue. This can affect the level of the charge and potential penalties. For example, federal law imposes mandatory minimum sentences for manufacturing or trafficking certain substances in certain quantities. A charge based on a lesser amount of the substance could allow a defendant to avoid a mandatory minimum sentence.

Penalties for Drug Crimes

The potential sentence for a drug crime in each jurisdiction tends to depend on the activity, the type of substance, and sometimes the quantity. Under the federal sentencing scheme, a defendant convicted of drug possession faces up to one year for a first offense. Penalties for manufacturing and trafficking depend on the "schedule" (group) in which a controlled substance is classified. Manufacturing or trafficking generally carries up to one year of imprisonment for a Schedule V drug, up to five years for a Schedule IV drug, up to 10 years for a Schedule III drug, and up to 20 years for a Schedule I or II drug. Manufacturing or trafficking certain amounts of heroin, cocaine, marijuana, methamphetamine, or other specified controlled substances may carry 5-40 years of imprisonment, while manufacturing or trafficking even greater amounts of the same substances may result in a sentence of 10 years to life.

Each state has its own sentencing scheme. For example, Virginia divides controlled substances into six schedules. A possession offense involving a Schedule V or VI substance does not carry jail time, while Schedule IV possession carries up to six months and Schedule III possession up to 12 months. Possessing a Schedule I or II substance may carry 1-10 years of prison time. Manufacturing or trafficking a Schedule V or VI substance carries up to 12 months, while a defendant may face 1-5 years in prison for a Schedule IV substance, 1-10 years for a Schedule III substance, and 5-40 years for most Schedule I or II substances. (Manufacturing or trafficking methamphetamine carries a sentence of 10-40 years.)

Last reviewed July 2024