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When Possession Becomes Possession With Intent

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Drug possession is a very different crime than drug possession with intent to sell.

Drug possession crimes are viewed from a treatment perspective. Programs such as Drug Court, Pretrial Diversion, and Drug Offender Probation are typically geared toward treating drug addiction.

However, possession with intent to sell is oftentimes a subjective evaluation made by the officer.

One of the things the arresting officer will look to see is how the drugs are packaged.

Personal use drugs are normally packaged all together. Individually packaged drugs are more indicative of sale.

Officers may also look to see what drug paraphernalia you possess along with the drugs. Scales and baggies are common pieces of drug paraphernalia that would lead the arresting officer to believe that you are selling drugs, not just using them.

Also, large amounts of cash on the accused’s person can lead an officer to believe that the drugs were being sold, not used.

Drug sale is always worse than drug possession. Whereas possession of cocaine is a third-degree felony, possession with intent to sell cocaine is a second-degree felony. The maximum punishment for possession with intent to sell cocaine is 15 years, as opposed to 5 years for simple possession.

Regarding marijuana, simple possession of marijuana under 20 grams is a misdemeanor but possession with intent to sell, even if the total amount is less than 20 grams, is a third-degree felony.

I have heard many a prosecutor utter the phrase, “sale means jail.”

In the State of Florida, if you are caught selling drugs within 1000 feet of a school, you face a three-year mandatory prison sentence.

Possession with intent to sell is not the same as trafficking. Trafficking - while a far more serious crime - is based on weight. But possession with intent to sell a controlled substance is not based on weight. That means that you could possess a small quantity of drugs (even a misdemeanor quantity of marijuana) and could still be charged with a serious felony depending on what the officer thinks.

Obviously, if you are caught in a hand-to-hand transaction, that may be a little more indicative of sale than simply the way the drugs are packaged. However, evidence of intent can be open to interpretation, and the prosecutor evaluating your case for a felony filing decision should be made aware of facts and circumstances that could result in a sale case being filed as a simple possession case.

Eric Matheny is a Miami drug possession attorney and Broward drug possession attorney. Attorney Eric Matheny can be reached directly at (305) 504-6655.