Possession of an illegal drug is already a serious charge in Georgia. But it’s a lot more serious if you’re charged with possession with the intent to distribute under O.C.G.A. §16-13-30.
This is a charge that, if it turns into a conviction, could have you facing serious jail time with hefty fines to pay. But it doesn’t have to turn into a conviction.
That’s because Joseph Williams Law Firm is here to help. If you have been charged with possession with the intent to distribute, reach out for a free consultation to learn more about your legal defenses and how to fight for your freedom.
Definition of Possession with Intent to Distribute Controlled Substances O.C.G.A. § 16-13-30(b); (j)(1)
Under the above-referenced code section, it is a violation of the Georgia Controlled Substances Act for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.
What Does a Prosecutor Need to Prove Intent to Distribute?
You can be charged with possession with the intent to distribute with only probable cause, but in order for the prosecution to actually convict you, they’ll need to prove beyond a reasonable doubt that you possessed a controlled substance and intended to sell it.
How do they do that, exactly?
First, they need to show that you possessed a controlled substance. Then, they need to prove that you intended to sell it.
They can’t read your mind, so they often use other indicators and circumstantial evidence to demonstrate that you intended to sell the controlled substance. Examples include the following:
- People frequently coming to your home and only staying for a short time
- Large quantities of the controlled substance in question
- Large amounts of cash
- Tools commonly used in the sale of drugs, such as scales and small plastic baggies
What Is a Controlled Substance?
The Drug Enforcement Administration categorized controlled substances into different schedules based on their dangerousness. In Georgia, a controlled substance refers to a drug, substance, or immediate precursor in Schedules I through V of the Official Code of Georgia Annotated.
Schedule I
Schedule I drugs are classified as drugs with no current medical use with high potential for abuse or addiction. These are the types of drugs that not even a pharmacist will have access to. Out of all drugs, the DEA labels these the most dangerous drugs. The following are all considered Schedule I substances under Georgia state law:
- Heroin
- LSD
- MDMA (Ecstasy)
- Psilocybin (Magic Mushrooms)
- Synthetic Marijuana (Spice)
- Mescaline (Peyote)
- Cannabis
Schedule II
Schedule II drugs are classified as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence. Unlike Schedule I, Schedule II controlled substances do have some current medical use and can be obtained through prescription. The following are examples of Schedule II drugs:
- PCP
- Oxycodone
- Cocaine
- Methamphetamine
- Amphetamine
- Fentanyl
- Vicodin
- Hydrocodone
Schedule III
Schedule II drugs are classified as drugs with a moderate to low potential for drug abuse. The risks of dependence are lower than that of Schedule I and II drugs, but less than that of Schedule IV or V. These are mostly prescription drugs, and usually not purchased over the counter. The following are example of Schedule III drugs:
- Testosterone
- Anabolic Steroids
- Ketamine
- Tylenol with Codeine
- Suboxone
Schedule IV
Schedule IV drugs are defined as drugs with a low potential for abuse and lower risk of dependence. Common examples of Schedule IV drugs are any of the following:
- Xanax
- Soma
- Valium
- Ambien
- Tramadol
- Ativan
- Klonopin
Schedule V
Schedule V are drugs with the lowest potential for abuse or dependency or misuse. All of the following are considered Schedule V drugs:
- OTC Cough Syrup
- Pseudoephedrine
- Robitussin AC
- Ezogabine
What Does Possession of a Controlled Substance mean?
If you’re charged with possessing an illegal substance with the intent to distribute it, it’s crucial to fully understand your situation. Otherwise, you could make costly errors that harm your future.
Hire an attorney to help you understand the elements of the crime and to develop a strategy to avoid conviction. In the meantime, let’s dive into what it means to possess a controlled substance for sale in legal terms.
Possession
Drug possession is the first, perhaps most important part of this charge. Georgia law defines possession somewhat differently than what a lot of our clients think.
In legal terms, possession of a drug refers to control of that drug. You can have control of a drug without having it directly on your person or in your vehicle.
The law breaks possession down into three key types:
- Actual possession. “Actual possession” of a controlled substance means you have direct and immediate control over the substance. This usually implies that the substance is on your person, such as in your pocket, in a bag you’re carrying, or in your hand. The key aspect is that you have immediate control over the substance and can access it without needing to go through another person or take additional steps. Actual possession can still be shown even if you do not have the item on your person.
- Constructive possession. “Constructive possession” of a controlled substance means you may not have the substance physically on your person, but you have control over its location and the ability to access it. Essentially, you have the power and intent to control the substance, even if it’s not in your immediate physical possession.
- Joint possession. “Joint possession” of a controlled substance refers to a situation where two or more individuals share control over the location and access to a controlled substance. In simpler terms, it means that more than one person has the ability and intent to control the drug. You and your codefendant can both have possession over an item even if you both share actual or constructive possession.
Knowledge
Possession is only the first part of in a sale of a controlled substance case. You must also know that you possess the controlled substance. The state likes to use police officers’ testimony to prove knowledge. Many times, officers will claim that the area of the arrest was a common area for drug sales. That testimony as well as other circumstantial evidence can be damaging to your case. Nevertheless, your case can still be won.
For example, you might have borrowed a friend’s car and gotten pulled over. Suddenly, you’re under arrest after police found a stash of cocaine base in the glove compartment. You had no knowledge that you were in possession of the drug. You should not be found guilty.
How Does This Differ from Simple Possession?
When you are facing drug charges you may be unsure of why you weren’t charged with simple possession instead of possession with intent to distribute.
Both charges are violations of the Georgia Controlled Substance Act, but the penalties are much different.
Let’s take a look at the difference between possession and possession with the intent to distribute in Georgia.
The Quantity of the Controlled Substance
Often, the amount of a drugs you have in your possession determines whether you are charged with simple possession or possession with intent to distribute.
A small amount of a drugs suggests you possess the drug for personal use, and a large amount suggests you possess it with the intent to sell it.
The Presence or Absence of Drug Paraphernalia
Drug paraphernalia like pipes, rolling papers, and similar items can indicate that you intended to personally use the drugs you had in your possession.
Other drug paraphernalia, like scales or plastic baggies, may suggest that you intended to sell the drugs you allegedly had in your possession.
In other words, the presence of drug paraphernalia can make a big difference in whether you’re charged with possession or possession with the intent to distribute.
What Are the Best Defenses O.C.G.A. § 16-13-30?
Once you have determined the severity of the criminal charges, you can begin building a defense strategy.
Below are just a few samples of the common defenses used against charges like possession with the intent to distribute.
Police Officer’s Failure to Follow Constitutional Procedures
Law enforcement officers must adhere to particular protocols when they investigate and arrest you. If they violate those protocols, they may be violating your constitutional rights.
A violation of your constitutional rights may be reason to dispute the possession with intent to distribute charge you are facing.
For example, your Fourth Amendment rights are meant to protect you from illegal search and seizure. A police officer may have searched your car without probable cause to believe you were breaking the law.
In such a case, you may be able to argue that the evidence found as a result of that unlawful search should be suppressed and excluded at trial.
Momentary Possession
Maybe it’s true that you possessed illicit drugs at the time of your arrest, but you only had the drugs in your possession for a brief moment. If this is the case, you should not have been charged with sale of a controlled substance. It was just bad timing, and you never intended to sell anything.
In fact, you might have been attempting to throw them away. Or you might have accidentally come into possession of the drugs. You and your attorney might be able to convince the court that this is the case. If you’re successful, your case can be dismissed.
Lack of Control, Possession, or Knowledge
A key part of many criminal offenses is the intent to do harm. However, you may not have had any intent to possess drugs, let alone the intent to sell them. For example, maybe you borrowed a friend’s car that unbeknownst to you had methamphetamine in it. If the police find it, you could be charged with possession of methamphetamine even though you knew nothing about it.
Proving you did not intend to commit a crime is often a viable defense. A trusted lawyer can help you understand whether this or any other defense will work in your specific case.
Valid Prescription
Many controlled substances often also have medicinal uses. While the substances can have addictive or potentially harmful properties, they may be one of the only treatment options available for certain conditions.
If a medical professional has legally been prescribing the drug to you, it’s not a crime for you to have it. If you have the amount of the drug specified by your prescription, it’s likely to be difficult for the prosecution to prove that you intended to sell it.
Lack of Intent to Sell
In some cases, you may have had drugs in your possession because you intended to possess them for personal use. While simple possession is still a criminal charge, it can come with much less severe penalties than possession with the intent to distribute.
Entrapment
What if you never would have possessed illegal drugs or intended to sell them if it weren’t for the manipulation of another person? And what if that person was an undercover police officer?
It is an unlikely scenario, but if that describes your situation, you may be a victim of entrapment. Entrapment is a viable defense.
Insufficient Evidence
In Georgia, you have to be proven guilty beyond a reasonable doubt. And that proof comes through evidence.
So, what if there isn’t actually all that much evidence against you? Insufficient evidence could be an excellent argument to show that there is reasonable doubt in your case.
Most of the time, the illicit drugs are sent to the Georgia Bureau of Investigation for further testing. The crime lab will perform a series of tests on the substance to determine the drug isomers in the sample. Without a crime lab, the state of Georgia will have a hard time proving your guilt.
An experienced criminal defense attorney can help you assess the evidence against you and even devise a defense strategy to attack the evidence.
What Are the Penalties for Possession with Intent to Distribute?
Your maximum penalties will depend on the type of drug, but Possession with Intent to Distribute is never a misdemeanor. If you’re found guilty under O.C.G.A. § 16-13-30, you could face any of the following penalties:
- Schedule I, II or flunitrazepam – prison sentence up to 30 years on a first offense and up to 40 years or life for a second offense or subsequent offense
- Schedule III, IV, V, counterfeit substance or marijuana – prison sentence up to 10 years
In some cases, your attorney might be able to help you get probation and less jail time if the charges are reduced to possession of marijuana for instance.
Also, it’s important to note that a conviction under O.C.G.A. § 16-13-30 will typically disqualify you from any kind of drug diversion programs. Distribution sentences usually result in imprisonment in the state prison. County jails, drug rehabilitation centers, inpatient treatment facilities, and drug courts are normally reserved to individuals charged and convicted of simple possession. Other aggravating factors may worsen the potential penalties you face as well.
Aggravating Factors
The penalties for possession with intent to distribute are already high. Unfortunately, certain aggravating factors can make the penalties even worse.
For example, you may face worse penalties if the selling and distribution process is part of an organized crime group or gang. When arrested, you may also face harsher penalties if you possess a gun or other deadly weapon. Your criminal history can also be used as an aggravating factor at your sentencing.
If you are concerned that aggravating factors may impact your case, do not hesitate to reach out and discuss your case with a qualified defense attorney.
Drug Rehabilitation Programs
Drug programs allow convicted drug offenders to engage in treatment programs instead of spending time in jail or prison. Generally, however, Georgia courts do not allow people convicted of sale-related drug crimes to engage in drug diversion programs.
In other words, if you’re convicted of possession with the intent to distribute you won’t be eligible for drug programs.
However, your criminal defense lawyer may be able to fight to have your charge reduced to a simple possession of a schedule I or II charge making you eligible for all types of rehabilitation programs.
Possible Immigration Consequences
Immigrants face another potential penalty if they are convicted of possession of a controlled substance with the intent to distribute. That is deportation.
For many immigrants in the United States, this may be an incredibly serious potential penalty. This is another reason why it’s so important to speak with an experienced attorney about your legal options.
Speak with a Criminal Defense Attorney
If you’re charged with possession with intent to distribute under O.C.G.A. § 16-13-30 or any other drug offenses, the stakes are high. You could face years in jail and other long-lasting consequences that could harm your future. That’s where Joseph Williams Law Firm comes in. We understand the stress and worry you might be feeling after an arrest. We’re here to help you create a strong defense plan tailored to your specific case. Please reach out to us for a free consultation. You can call us at 912-259-6548 or fill out our online contact form.