Facing charges of possession with intent to distribute, also known as possession with intent to deliver, carries serious potential consequences in the state of Nebraska. These charges are different than being charged with simple possession, which assumes that drugs found on a person were intended for his or her own personal use. Possession with intent to distribute implies that the charged party was caught carrying a certain quantity of drugs that signaled to law enforcement that they may be trying to sell, distribute, or dispense of them to others.
Under the Controlled Substance Act, Nebraska’s drug laws prohibit the manufacturing, delivering, dispensing, or possessing of drugs with the intent to manufacture, deliver, or dispense of any substance. Prosecutors who want to appear tough on crime tend to seek convictions and harsh punishments. Courts are much less forgiving of possession with intent to distribute charges than with simple possession charges because they may be viewed as synonymous with dealing drugs.
If you’ve been charged with possession with intent to distribute or deliver, which can include drug trafficking or drug manufacturing charges, call the attorneys at Berry Law. They can look at the evidence against you and recommend a plan of action for defending yourself against these charges.
Simple Possession vs. Possession with Intent
Drug charges, in general, can range from minor infractions to serious felonies. The determination between minor and serious charges is often very subjective and determined by law enforcement and prosecutors. Penalties can include long prison sentences, hefty fines, and lengthy supervision periods following release from prison. A conviction for drug-related charges often wreaks havoc on reputations, careers, and personal relationships.
Even following restitution for a possession with intent to distribute conviction, carrying a permanent criminal record can make it difficult to find employment in the future. If convicted of a felony, convicted felons lose certain civil rights like the right to vote in elections and the right to own firearms. Drug trafficking charges can also result in loss of driver’s license, suspension of professional licenses or immigration investigations for non-citizens.
The distinction between simple possession and a more serious drug charge is usually based on eyewitness accounts or other evidence that was present at the time of the arrest that could suggest intent to distribute. For example, the presence of packaging materials, scales, or other paraphernalia may be used by prosecutors to demonstrate a defendant’s intent. The quantity of drugs itself could be used to make a case for distribution, as well as the location where the drugs were discovered.
In the case of Interstate drug stops, law enforcement might argue that evidence of large quantities of drugs present in a motor vehicle indicates that the driver was planning to deliver the drugs to another party. In some cases, this has included individuals who were transporting marijuana that was legally purchased in another state through the state of Nebraska when they were stopped by police along Interstate 80.
In cases where circumstantial evidence is at the heart of a prosecutor’s case, an experienced attorney can argue the charges leveraged against a driver. When it comes down to time served, the difference between simple possession charges and possession with intent to distribute can be quite significant.
Penalties Under Nebraska Law
Knowing the type and quantity of drugs present at the time of an arrest can help determine possible penalties the court could apply in accordance with Nebraska’s drug laws. For example, possessing less than one ounce of marijuana is typically punishable by a fine, while being in possession of between one ounce and one pound is a Class III misdemeanor.
When trafficking charges are what’s at stake, the total weight of seized narcotics includes the weight of any other substance that has been mixed in with the drugs. This could increase the total weight of possession and potential penalties as well. In these types of cases, the burden of proof is on the prosecutor to prove the following:
- The substance found by law enforcement was in fact an illegal, controlled substance.
- The person possessing the substance was not authorized or prescribed to use the drug.
- The person possessing the drug knowingly possessed it and planned to distribute it to others.
In Nebraska, selling, manufacturing, or possessing marijuana with the intent to distribute it is a Class IIIA felony, which holds a minimum sentence of one year in prison with a possibility of up to 20 years and a maximum fine of $25,000.
Possession with intent to distribute harder drugs like methamphetamines, heroin, cocaine, PCP, LSD, Fentanyl, or concentrated THC is a Class II felony. Penalties for these charges can range from one year in prison to no more than 50 years, depending on the quantity found. The larger the quantity of drugs found, the longer the sentence can typically be. Under Nebraska drug sentencing guidelines, possessing 140 grams or more of these substances is punishable by a minimum sentence of 20 years in prison up to a life term.
People convicted of possession with intent to distribute under Federal law can expect to serve a minimum mandatory prison sentence of at least five years, regardless of the quantity of drugs found.
Additionally, penalties are even stiffer in cases where someone is charged with possession with intent to distribute within 1,000 feet of a school, university, or playground, or within 100 feet of a public swimming pool, video arcade, or youth center. A youth center can be defined as any place where youth under 18 gather to receive programming, such as a recreational facility or community building.
If caught in the act of selling drugs, as in the case of selling to an undercover law enforcement officer or an agent of the police, Distribution of Controlled Substance charges may be filed. If the would-be buyer was under the age of 18 or indicated that they were underage, penalties for distribution are harsher than for a sale to a legal adult.
Likewise, if the charged party is accused of convincing a minor to help distribute a controlled substance, the consequences are typically more severe. The courts have ruled that not knowing a person’s age is not a defense against these charges. Consequences typically also differ depending on whether or not the accused is facing a first offense on drug charges or a second or subsequent charge.
Defenses
In many cases, evidence recovered by law enforcement during a drug trafficking stop or investigation is obtained using unlawful methods that violate a defendant’s Fourth Amendment right protecting against illegal search and seizure of property. This is one of the top defenses against Interstate drug stop charges.
If a driver is stopped without probable cause, the stop itself may be found to be in violation of Constitutional protections. Sometimes drivers are subject to involuntary searches of their vehicles. Without reasonable cause, such as visualizing or smelling drugs or alcohol within the vehicle or on the driver, police don’t have the right to search a vehicle or detain a driver while they wait for a K-9 unit to arrive. If you have been the victim of an unfounded traffic stop, illegal vehicle search, or detainment, contact an attorney at Berry Law to learn more about your rights.
An experienced attorney can file to have unlawfully obtained evidence suppressed in court. Without evidence, they can move that the court drop the charges entirely.
Unwitting possession is another common defense against possession with intent to distribute charges. An attorney may argue that his or her client wasn’t aware that drugs were present in a vehicle in which they were riding or that the drugs were in their possession. The defense must show the court that their client had no knowledge of wrongdoing based on facts, statements or other evidence gathered at the scene of the crime or following arrest. If a defendant didn’t know about the drugs, they have not committed a crime and charges may be dropped.
In some situations, an attorney may argue that the drugs a client was in possession of were for his or her own personal use stemming from a substance abuse disorder. They may work toward a plea bargain that allows a defendant to avoid prison time and receive substance abuse treatment instead.
Depending on the substances found by law enforcement during an investigation, it may also be possible to argue the chemical make-up of the drugs. For example, some prescription drugs today can resemble an illegal drug without having the chemical makeup of a drug on the list of controlled substances. A simple lab test can determine the difference between a legal and banned substance, possibly leading to a dismissal of charges.
In situations where the prosecution’s case relies heavily on circumstantial eye witness accounts, the credibility of the witnesses can be in question. Without a credible witness, eyewitness accounts can be less than reliable evidence. An attorney can argue that the prosecution’s witnesses cannot be entrusted to give accurate testimony during a trial.
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