Nebraska Revised Statute 28-416 defines possession with the intent to distribute, which makes it illegal for a person to knowingly or intentionally:
- Manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or
- Create, distribute, or possess with intent to distribute a counterfeit controlled substance.
Note, a person can be arrested for distributing controlled substances, even if the substances are not in fact illegal drugs. Controlled substances are defined under the Uniform Controlled Substances Act. This is a federal law by which Nebraska has also adopted. Controlled substances can range from heroin or cocaine to prescription medications.
Furthermore, possession with intent to distribute is not just a crime that targets drug dealers. Any person transporting a large quantity of drugs may be charged with possession with intent to distribute. Additionally, anyone who intends to share a controlled substance can be charged with possession with intent to distribute in Nebraska. This includes sharing marijuana or prescription pills such as hydrocodone.
What are the Penalties for Possession with Intent to Distribute in Nebraska?
The penalty for possession with intent to distribute in Nebraska depends primarily on two factors: (1) which type of controlled substance was possessed, and (2) how much of the controlled substance was possessed. The Uniform Controlled Substances Act, which is outlined in Nebraska Revised Statute 28-405, categorizes controlled substances as either Schedule I, II, III, IV, or V substances. Possession with intent to distribute a Schedule I, II, or III substance that is deemed an exceptionally hazardous drug is a Class II felony. Possession with intent to distribute a Schedule I, II, or III controlled substance that is not deemed to be an exceptionally hazardous drug is a Class IIA felony. Possession with intent to distribute a controlled substance classified in Schedule IV or V of section 28-405 is a Class IIIA felony.
For certain drugs, the penalties get more severe depending on the quantity of the drug possessed. For example, possession of 140 grams of cocaine or more is a Class IB felony. Possession of at least 28 grams but less than 140 grams of cocaine is a Class IC felony. Possession of at least 10 grams but less than 28 grams of cocaine is a Class ID felony. The same is true for base cocaine (crack), heroin, and methamphetamine/amphetamine salts. This table illustrates how the charge gets more severe as the quantity of drugs increases.
| Drug | 10g – <28g | 28g – <140g | 140g or more |
|---|---|---|---|
| Cocaine | Class ID Felony | Class IC Felony | Class IB Felony |
| Base Cocaine (Crack) | Class ID Felony | Class IC Felony | Class IB Felony |
| Heroin | Class ID Felony | Class IC Felony | Class IB Felony |
| Methamphetamine | Class ID Felony | Class IC Felony | Class IB Felony |
The penalties for marijuana are a little different. Possession of more than one ounce but not more than one pound of marijuana is a Class III misdemeanor. Possession of more than one pound of marijuana is a Class IV felony.
There are other factors that are considered during sentencing that can make a sentence more severe. Distributing drugs to a person under the age of 18 can lead to a longer sentence. In addition, the sentence can be more severe if the drugs were distributed within 1000 feet of a school, college, playground; or, within 100 feet of a public or private youth center, public swimming pool, or video arcade.
It is also worth noting that it is illegal to manipulate someone else into distributing a controlled substance as a means of avoiding criminal liability. Section 28-416 states that it is illegal for any person over 18 years old to hire, cause, coerce, persuade, or entice any person under the age of 18 to manufacture or distribute a controlled substance.
What is a Class I, Class II, Class III, and Class IV Felony in Nebraska?
Nebraska has ten levels of felonies that are divided into four classes. Class I felonies represent the most severe crimes and carry the harshest penalties. There are four subclasses to Class I felonies (Class IA, Class IB, Class IC, and Class ID). A Class IB felony is more serious than a Class IC felony, but less serious than a Class IA felony. Class IV felonies are the least serious and carry the most lenient sentences. The table below shows the various types of felonies one can be charged with for possession with intent to distribute, as well as the minimum and maximum sentences each charge carries.
| None | Minimum Sentence | Maximum Sentence |
|---|---|---|
| Class IB Felony (e.g., possession of 140g or more of cocaine) | 20 years imprisonment | Life Imprisonment |
| Class IC Felony (e.g., possession of at least 28g but less than 140g of cocaine) | 5 Years Imprisonment | 50 Years Imprisonment |
| Class ID Felony (e.g., possession of at least 10g but less than 28g of cocaine) | 3 Years Imprisonment | 50 Years Imprisonment |
| Class II Felony (e.g., possession with intent to distribute a Schedule I, II, or III that is deemed exceptionally hazardous) | 1 Year Imprisonment | 50 Years Imprisonment |
| Class IIA Felony (e.g., possession with intent to distribute a Schedule I, II, or III controlled substance that is not deemed to be an exceptionally hazardous) | None | 20 Years Imprisonment |
| Class IIIA Felony (e.g., possession with intent to distribute a controlled substance classified in Schedule IV or V of section 28-405) | None for imprisonment and nine months post-release supervision if imprisonment is imposed | 3 years imprisonment and 18 months post-release supervision or $10,000 fine, or both |
| Class IV Felony (e.g., possession of more than one pound of marijuana) | None | 2 years imprisonment and 12 months post-release supervision or $10,000 fine, or both |
How Does Federal Law Differentiate from Nebraska State Law?
The U.S. Code defines possession with intent to distribute the same way as Nebraska Statute 28-416. Possession with intent to distribute, however, carries different penalties at the federal level than at the Nebraska state level. The federal penalties can also be increased if death or serious bodily injury resulted from the use of the controlled substance. For example, the following federal charges all carry a minimum prison term of 10 years and a maximum prison term of life imprisonment:
- Possession with intent to distribute 1 kilogram or more of heroin
- Possession with intent to distribute 5 kilograms or more of cocaine
- Possession with intent to distribute 280 grams or more of cocaine base (crack)
- Possession with intent to distribute 1000 kilograms or more of marijuana
- Possession with intent to distribute 50 grams or more of methamphetamine
The following federal charges all carry a minimum of 5 years imprisonment and a maximum of 40 years imprisonment:
- Possession with intent to distribute 100 grams or more of heroin
- Possession with intent to distribute 500 grams or more of cocaine
- Possession with intent to distribute 28 grams or more of cocaine base (crack)
- Possession with intent to distribute 100 kilograms or more of marijuana
- Possession with intent to distribute 5 grams or more of methamphetamine
Berry Law’s Team Provides You With Multiple Attorney Perspectives
How Can a Criminal Defense Lawyer Help?
Possession with intent to distribute is a felony that carries potential incarceration for even the most minor offenses. When large weights of drugs are involved, the accused faces mandatory minimum prison sentences. An experienced criminal attorney can guide you through the process and protect your rights. Sometimes this means the attorney will fight unlawful searches and seizures by law enforcement. Other times the attorney will seek to exploit weaknesses in the prosecution’s case in chief. The attorneys at Berry Law understand Nebraska drug law and relentlessly defend the constitutional rights of clients charged with drug crimes including possession with intent to distribute.
