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How Do Prosecutors Prove “Intent to Distribute” Drugs?

Posted by Sam Israels | Jun 03, 2024

In drug-related criminal cases, "intent to distribute" controlled substances can often be proven with direct or circumstantial evidence. Sometimes, police will have direct evidence, such as you selling drugs to undercover police officers or your statements that you have drugs for sale.

However, most drug-related criminal cases will rely on circumstantial evidence, such as having possession of a scale, a large quantity of drugs, or the packaging of the drugs in multiple baggies or bundles. "Possession with intent to distribute" a controlled substance is a more serious crime than simple possession because it's a felony as opposed to a misdemeanor.

How Do Prosecutors Prove “Intent to Distribute” Drugs?
In drug possession with intent to sell cases, prosecutors use direct or circumstantial evidence.

California Health and Safety Code 11351 HS is the law defining "drug possession with intent to sell" and is a commonly charged offense.

HS 11351 says, "Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years."

"Controlled substances" are divided into five schedules. For example, Schedule I drugs such as heroin have no accepted medical use and carry the most severe penalties. Schedule II drugs such as cocaine have some medical use but are typically illegal and also have harsh penalties.

Schedule III drugs, such as common painkillers like Vicodin, are often used without a prescription. Schedule IV drugs such as anti-depressants and sleep aids like Ambien are also illegal without a prescription. Schedule V drugs have medical use and are considered the least dangerous controlled substance.

How Is "Intent to Sell" Drugs Proven?

A controlled substance is typically regulated by state and federal laws, such as the United States Controlled Substances Act. A common question is, how does the district attorney demonstrate not only that you possessed a controlled substance but that you intended to sell or distribute it?

How Is "Intent to Sell" Drugs Proven?

This allegation of intent is a critical factor that must be established beyond a reasonable doubt for a conviction. As noted, "intent to distribute" narcotics can be proven through direct or circumstantial evidence.

Notably, the evidence does not have to demonstrate that illegal drugs were for sale, rather only that you intended to distribute or deliver them, even if not in exchange for money or anything of value.

In drug cases, avoiding a conviction for "intent to distribute" is crucial because it's a felony with harsh penalties, such as a mandatory minimum prison sentence.

This means that you must understand how prosecutors will try to show intent to sell and what the courts consider admissible evidence. This knowledge will help you prepare to defend against the drug sales charges. So, what type of evidence is used to prove intent to distribute a controlled substance?

As noted, the district attorney will normally rely on two types of evidence, such as the following:

  • Direct Evidence. This is typically straightforward, clear proof that directly supports a fact. Direct evidence of intent to sell a controlled substance shows intent to do so without the need for inference.
  • Circumstantial evidence. This requires a jury to make assumptions to connect the evidence to the drug crime, such as possessing drug baggies, scale, packaging tape, or a large amount of cash.

What is Direct Evidence?

Direct evidence is the strongest and does not require inference or assumption to connect it to the drug crime. The most common type of direct evidence includes selling drugs to an undercover police officer during a video-recorded sting operation. It significantly strengthens the prosecution's case.

Sometimes, in intent to distribute controlled substance cases, direct evidence is not available. Some examples of direct evidence in drug sales cases include the following:

  • Documented evidence. This can include text messages or emails that discuss plans to sell or distribute illegal drugs. This type of direct communication evidence can be challenging for a defendant to overcome, especially if it includes details about quantities, prices, and distribution methods.
  • Admission by verbal statements. Sometimes, a defendant is heard verbally by undercover police admitting to intending to sell or distribute illegal drugs, which can be crucial evidence to convict. Maybe they were captured on video discussing plans to sell the controlled substances.
  • Testimony by eyewitnesses. Testimony from people who directly observed the defendant distributing the drugs is a form of direct evidence. Maybe a police officer witnessed a drug deal in progress.

What is Circumstantial Evidence?

Circumstantial evidence in drug sales cases requires the jury to make inferences to connect the evidence. It typically includes the possession of drug baggies, drug scales, packaging tape, or bulk cash on hand.

Notably, these individual pieces of evidence don't prove a defendant's intent; rather, the district attorney will say that the totality of the circumstances demonstrates the defendant intended to sell the drugs.

Most drug sales convictions rely solely on circumstantial evidence. It's indirect evidence that suggests a fact by implication or supports a logical conclusion about the defendant's intent. Some examples of circumstantial evidence can include the following:

  • Scales and material for packaging. The possession of scales, little drug baggies, boxes, or other packaging materials near the controlled substances is strong evidence to prove drug distribution. Perhaps the drugs are packaged in a manner that is consistent with distribution.
  • Large quantity of illegal drugs. Suppose a defendant has possession of a quantity of drugs above personal use levels. This could be used to demonstrate intent to distribute. Perhaps the defendant was arrested in an area known by police to be used by drug dealers.
  • Possessing large sums of cash. If a drug sales defendant has large amounts of cash or a weapon along with controlled substances, especially in small denominations, it could be used to demonstrate an intent to sell them.
  • A high number of visitors. Suppose a defendant has frequent visitors to their home. In that case, many people coming and going for a brief visit can often be used to demonstrate there are drug transactions inside.

What are the Best Defenses?

Circumstantial evidence is typically weaker than direct evidence, but prosecutors rely heavily on it to prove intent to distribute drugs. Thus, the best defense strategies will target casting reasonable doubt around the circumstantial evidence presented.

Also, as noted, since the penalties for possession with intent to distribute controlled substances are much harsher than simple possession, it's common to challenge the evidence showing intent to get the charges reduced, especially in cases with direct evidence of possession. Some of the common defense strategies include the following:

  • Drugs were for personal use. Sometimes, we can argue that the drugs were intended for personal use, not distribution. Perhaps we can show evidence of the defendant's substance dependence.
  • Lack of knowledge. Perhaps we can argue the defendant was unaware of the presence of the controlled substances. Maybe the prosecutor's allegation that the defendant had control over the drugs with the intent to distribute them can be successfully challenged.
  • Entrapment. Police entrapment occurs when they persuade someone to commit a crime they would not have otherwise committed, typically during an undercover sting. Suppose we can prove entrapment. In that case, the charges could be dismissed.
  • Illegal search and seizure. Suppose we can show that law enforcement violated the defendant's Fourth Amendment rights with an illegal search and seizure. In that case, the evidence gathered could be deemed inadmissible in court, leading to a case dismissal.

Contact our law firm, Cron, Israels & Stark, in Los Angeles, California, for more information or a free case evaluation.

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About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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