San Diego Criminal Defense

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San Diego Criminal Lawyer

San Diego Drug Distribution Defense Lawyer

Drug Possession with Intent to Distribute Crimes

Explained by a San Diego Criminal Lawyer

Health & Safety Code 11351 HS



Elements of the Crime


Penalties & Punishment



Possession with the intent to distribute is a serious crime. Jail and prison consequences vary tremendously based on the specific facts of each situation, including: the quantity of the substances involved, and presence of cash, scales, packaging, and weapons. 


For specific legal advice on your case you need to contact an experienced San Diego criminal lawyer to represent you in the legal process. Each criminal possession with intent to distribute case involves a search and seizure, that if ruled illegal, can result in the suppression of evidence and dismissal of your entire case. 


All drug possession cases are based either on the California Health & Safety Code (state level case) or the Controlled Substances Act (federal level case). Exampes of common controlled substances controlled by these laws include: 

  • Cocaine

  • Marijuana

  • Heroin

  • Methamphetamine

  • GHB

  • Peyote

  • LSD and other hallucinogenics

  • Prescribed drugs such as Codine, Adderall, and Oxy-Contin


Definition of Possession with Intent to Distribute

There are three different ways in which you can legally be said to be in possession with the intent to distribute narcotics. 

Actual Possession of Narcotics with Intent to Distribute
Constructive Possession of Narcotics with Intent to Distribute
Joint Possession of Narcotics with Intent to Distribute
Actual Possession:

Actual possession of a substance is easiest to define - It means that you are actually in possession of the drug. That is most easily demonstrated by it's location on your person, such as in your pocket or in a bag that you are carrying. 

Constructive Possession:

Constructive possession of a controlled substance is a little bit more difficult to define. If you have either:

  • Access to the controlled substance, or

  • The right to control the controlled substance (regardless that you do not have actual possession)


Joint Possession:

Joint possession of a controlled substance occurs when two or more people have possession of the drugs. That could be shown either by joint operation and control of an enterprise, or constructively - that you both have access to the substances and claim the right to possess them. 

Practice Areas


Penalties and Punishment

A conviction for possession with intent to distribute a controlled substance is a felony and punishable by: 

  • 2, 3, or 4 years

  • Up to $20,000 fine


Probation is possible in the case of a first time offender without any aggravating circumstances. 


Aggravating Factors

The presence of "aggravating factors" can drastically increase the prision sentence for a conviction of possession with intent to sell or distribute. If the substance is cocaine, cocaine base, or heroin the ADDITIONAL penalties increase as follows:

  • 3 years if quantity exceeds 1 kilgoram

  • 5 years if quantity exceeds 4 kilograms

  • 10 years if the quantity exceeds 10 kilograms

  • 15 years if the quantity exceeds 20 kilograms

  • 20 years if the quantity exceeds 40 kilograms

  • 25 years if the quantity exceeds 80 kilograms


The fine for the presence of the aggravating weight factor can increaes up to $8 Million.  


PC 1000 Drug Diversion

Drug diversion is not applicable to "drug sales," however an experienced San Diego drug defense lawyer can negotiate your charge down from possession with intent to distribute to possession for personal use, thus making you eligible for drug diversion programs.  


Elements of Proof of Possession with Intent

There are four elements that the Government must prove in order to convict you of possession with intent to distribute a controlled substance. These elements do not change between State and Federal level cases. The elements of possession with intent are:


  • You knowingly purchased or possessed a controlled substance

  • You knew the nature of the drug as a controlled substance

  • You possessed enough of the drug to sell

  • You possessed or purchased the drug with the intent to sell it. 



The government must prove that you knowingly bought a controlled substance. Buying a used car, and finding Heroin in the gas-tank does not satisfy the knowledge requirement. Additionally, the government must prove that you knew what you were buying was illegal. For example, you don't even have to know the name of the product you are buying - the government must simply show that you knew what you were buying was an illegal controlled substance. 


This knowledge may be presumed based on your conduct following the discovery of the drugs. Which is why it's important to remember to NEVER SPEAK TO THE POLICE WITHOUT A LAWYER



You must possess enough of the drug to sell. This can be a small amount such as 1/16 of an ounce of meth. You cannot be convicted based on useless amounts or residue, however possession of a small amount of a drug, combined with a statement that you don't use that drug can form the basis of a charge of possession with intent to distribute. 


Possession for Sale vs. Possession for Personal Use

Intent is a difficult concept to prove because it can only be proven by circumstantial evidence - there is no way to actually look into a person's mind to ascertain what they were thinking. The only way to determine intent is to analyze a person's actions. An experienced San Diego criminal defense lawyer understands that there are particular instructions that you can give to the jury to limit how they can use circumstantial evidence. Under California Criminal Jury Instruction number 224: If an element of the crime rests solely on circumstantial evidence and there are two reasonable interpretations of that circumstantial evidence: one of those reasonable interpretations points to guilt, the other points to innocence. The Jury MUST ACCEPT the reasonable conclusion that points to innocent and find you NOT GUILTY. 


Factors Distinguishing Personal Use and Intent to Distribute

No Paraphanelia

Nearly every drug requires paraphanelia to properly use the drug. Whether the paraphenlia is a pipe or a rolled up bill, the absence of paraphanelia can be used to impute an intent to distribute the illegal narcotics instead of an intent to use them personally. Possession of drug paraphanelia is a crime that can be charged in addition to possession of a controlled substance for personal use, however both of these crimes are misdemeanors, while Possession with intent to distribute is a felony. While as a general proposition, evidence of another crime usually hurts your case, in this case it would be a factor that may help your case. 


Drug Packaging Materials

The presence of plastic baggies, vials, balloons, bindles, or some other packaging to hold a controlled substance can be used to demonstrate an intent to distribute a controlled substance. Simply the presence of more packaging materials than necessary for personal use can be used to charge you with the intent to distribute. 


Distribution Tools

The presence of distribution tools will greatly increase the odds of a successful prosecution - unless those tools are dismissed by evidentiary motion. Tools such as:

  • Scales

  • Diluting Materials

  • Measuring instruments

  • Precursors


These tools can all be used to show that you intended to distribute the controlled substance rather than an intent to consume for personal use. 



Legal Defenses to Possession with Intent to Distribute or Sell

Illegal Search

Police do not just discover drugs by happenstance - drugs are discovered by a search of a person's property, effects, or themselves. The police must search, and many times they do not search correctly or with a warrant. Even if police have a warrant to search you, the warrant could be defective and not support the search. An experienced San Diego drug defense lawyer knows how to file motions to suppress any evidence or statements seized as a result of illegal search and seizure or illegal interrogation. 


If the search is warrantless the probability of a motion to suppress the evidence being successful increases. Illegal searches are routinely coupled with an illegal detention and an illegal detention is another reason that evidence may be suppressed in your case. If you have been searched and drugs were seized as a result, it is important to call a San Diego criminal defense attorney immediately. 


No Intent to Sell

Even if the prosecution can establish possession of a controlled substance, they may not be able to establish that you had the intent to sell or distribute. If you can prevent the prosecution from establishing that you had the intent to distribute then you can successfully avoid a substantial jail or prison sentence.  As we discussed, your intent to sell is based entirely on circumstantial evidence such as: the presence or absence of paraphanelia, packaging materials, scales, or diluting agents. Remember, California Criminal Jury Instruction 224 demands that the jury find you not guilty if you can reasonably demonstrate a lack of intent to sell a controlled substance. 


Lack of Possession

Challenging possession is the first line of defense in a charge of possession with intent to distribute. First, actual possession may be challenged by evidentiary motion, and if the search of your person or effects was illegal, then the drugs are excluded from evidence and you can challenge the element of possession. Successfully suppressing evidence of an illegal search can result in your case being dismissed. Second, constructive possession may be successfully challenged. It can be difficult for the prosecutor to prove you had knowledge or control over the actual location where the drug were discovered. 


Lack of Knowledge

A belief that cocaine was actually PCP is not a lack of knowledge defense. However a belief that cocaine was sugar is a knowledge based defense to the crime of possession with intent to distribute. The defense is only likely to be successful when a defendant has absolutely no record of drug possession. Only the type of defendant without a criminal record can credibly tell a judge and jury that they did not have any knowledge that they were in possession of a controlled substance.