Possession of Marijuana
The most common drug charge is Possession of Marijuana, which is a misdemeanor, up to a certain amount (the amount varies by state). Possession of Marijuana is gradually being decriminalized, state by state. Even in states where it is not yet decriminalized, the penalty is often just a fine. Nonetheless, it remains the most common drug offense and can often have significant collateral consequences.
Possession of Drug Paraphernalia
Another very common drug charge is Possession of Drug Paraphernalia, which is usually a misdemeanor. Drug paraphernalia can be any item that is used to produce, conceal, or consume a controlled substance. It commonly includes bongs, one-hitters or dugouts, roach clips, spoons, pipes, rolling paper, lighters, needles, syringes, clear plastic baggies, scales, razor blades, vials, and pill bottles.
Sometimes Possession of Drug Paraphernalia is a felony. While the laws vary from the state to state, often Possession of Drug Paraphernalia is a felony when the paraphernalia is related to the manufacture of a controlled substance, especially methamphetamine. This type of drug paraphernalia can include acetone (nail polish remover and paint thinner), anhydrous ammonia (commonly found in fertilizer), ephedrine and pseudoephedrine (usually extracted from cold medicines, like Sudafed), lithium, sodium hydroxide (commonly called lye, which is found in drain cleaners, like Drano), phosphorous (found in matches and road flares), toluene (brake fluid is a common source), coffee filters, rubber hoses, and plastic bottles.
Possession of a Controlled Substance
The most common felony drug charge is Possession of a Controlled Substance. In order for the government to convict a person of Possession of a Controlled Substance, it must prove beyond a reasonable doubt that the person (a) possessed a substance; (b) that is listed on a federal schedule of controlled substances; and (c) knew of its presence and nature.
Possession can be actual or constructive. Actual possession occurs when the controlled substance is found on the person (for example, in their pocket or hand) or within easy reach and convenient control (such as in the glove compartment or center console of a motor vehicle, when the person was the driver or a passenger).
Constructive possession occurs when the controlled substance is within the person’s custody or control, such as in a room or container that the person owns or controls. One example of constructive possession is when law enforcement locates a controlled substance in a person’s bedroom, but the person is not present at the time. Another common example is when law enforcement locates a controlled substance in a person’s purse or backpack, when the person is not present.
Delivery of a Controlled Substance and Possession with Intent to Distribute
Delivery of a Controlled Substance and Possession of a Controlled Substance with the Intent to Distribute are essentially the same offense. It is essentially two different ways to prove the same thing. Considered another way, Possession with Intent to Distribute is the attempted Delivery of a Controlled Substance.
This offense does not include a minimum weight requirement for the drugs, so any amount will suffice, as long as the other elements of the crime can be proven. Consequently, low-level drug dealers (who usually do not have large quantities of drugs in their possession at any given time) are often charged with this offense.
To obtain a conviction on this offense, the government must prove beyond a reasonable doubt that a person knowingly distributed or delivered (or possessed with the intent to distribute or deliver) a controlled substance. Again, a controlled substance is one that is listed on a federal schedule of controlled substances. These types of cases may involved a controlled buy and confidential informants, which can be dangerous and controversial.
It comes as a surprise to many that seemingly harmless conduct can give rise to this offense. For example, if a person shares a prescription medicine with someone else (even a single pill), that constitutes the crime of Delivery of a Controlled Substance. Likewise, passing around a joint or sharing marijuana brownies at a party is Delivery of a Controlled Substance.
Illegal Manufacture of a Controlled Substance
For every dose of a controlled substance illegally purchased, possessed, or consumed, someone had to make it. Sometimes the manufacture is legal, even though the distribution and consumption are illegal, as is often the case with pain pills and other prescription drugs. Likewise, marijuana can be grown legally in some states, even if it is illegally transported to other states and sold.
But more often than not, the act of manufacturing is also illegal. Common cases of Illegal Manufacture of a Controlled Substance involve marijuana hydroponics in someone’s residence and illegal marijuana farms. Phencyclidine, also known as PCP or mushrooms, is often grown locally in the United States. Likewise, manufacturing methamphetamine is common in the United States, as the ingredients and equipment can be purchased at common drug, home improvement, hardware, and grocery stores.
However, heroin, fentanyl, and cocaine require ingredients that are more easily grown outside the United States. Therefore, these drugs are usually manufactured in other countries and imported illegally. For example, heroin comes from opium poppies, which can be grown in the United States, but it is almost impossible to do so without being detected. So the opium poppy is typically grown in remote parts of the world, like Afghanistan. Similarly, cocaine is made from the leaves of the coca plant, which is native to South America. And fentanyl is a synthetic opioid often imported from China or Mexico.
Drug Trafficking is the most serious drug offense. It is Delivery of a Controlled Substance (or Possession with the Intent to Deliver a Controlled Substance) plus a minimum weight requirement for the drugs. Some states divide Drug Trafficking into different levels, like Drug Trafficking 1st Degree and Drug Trafficking 2nd Degree, depending on the weight of the drugs.
The weight requirement is different for different drugs. For example, it usually takes a very large amount of marijuana (like 30 kilograms or more) to constitute Drug Trafficking. But for heroin, fentanyl, cocaine, and LSD, it might be less than 100 grams, depending on the state.
Often drug trafficking crimes are referred to United States Attorneys for prosecution in federal court, where the sentences tend to be harsher than in state court. Under federal law, possession of the following amounts of controlled substances is sufficient to constitute the offense of Drug Trafficking: 100 grams of heroin, 500 grams of cocaine, 28 grams of cocaine base, 10 grams of phencyclidine (PCP), one gram of lysergic acid diethylamide (LSD), 40 grams of fentanyl, 100 kilograms of marijuana, and 5 grams of methamphetamine. These weights do not have to be (and almost never are) pure, so any mixture or substance meeting the weight requirement and containing a detectable amount of the controlled substance will suffice.