6.609 — POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE (28G+)

Violations of "Statute 6.609" results in a Class E Felony

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(a) Definitions

Possession of a controlled substance with intent to distribute refers to the unlawful possession of a controlled substance, coupled with the intention to distribute or sell the substance to others. This charge typically applies when law enforcement has evidence that the defendant possessed a substance in a quantity, or in a manner, indicating they intended to sell or distribute it, rather than simply possessing it for personal use. Factors such as large quantities of the substance, distribution tools (e.g., scales, packaging materials), or involvement in drug transactions can contribute to the determination of intent to distribute.

(b) Elements

To establish the offense of possession of a controlled substance with intent to distribute, the prosecution must prove beyond a reasonable doubt the following elements:

1. The defendant knowingly and intentionally possessed a controlled substance that is classified under applicable drug laws (e.g., Schedule I, Schedule II).

2. The defendant possessed the controlled substance with the intent to distribute it to others, rather than for personal use.

3. The defendant’s possession was unlawful, meaning they had no legal authorization to possess the substance (such as a prescription or medical exception).

4. There is evidence, such as the amount of the substance, packaging, or other paraphernalia, that supports the intent to distribute. This may include large quantities, multiple bags or containers, or evidence of drug sales or transactions.

(c) Defenses

Defenses against a charge of possession with intent to distribute may include:

1. The defendant did not possess the controlled substance, either directly or constructively, and had no knowledge or control over it.

2. The substance was for personal use only, and there is insufficient evidence to prove intent to distribute.

3. The defendant was coerced or under duress when found in possession of the controlled substance and did not intend to distribute it.

4. The evidence was obtained in violation of the defendant’s rights, such as through an illegal search or seizure.

5. The defendant had a valid prescription for the controlled substance, which they possessed legally.

(d) Aggravating Factors

The court may consider the following aggravating factors when determining the severity of the offense:

1. The defendant possessed a particularly large quantity of the controlled substance, suggesting a higher likelihood of distribution.

2. The defendant used or possessed tools commonly associated with drug distribution, such as scales, baggies, cash, or firearms.

3. The defendant was caught in the act of distributing or attempting to distribute the controlled substance, or had previously been involved in distribution activities.

4. The defendant was found in possession of controlled substances near a school, daycare center, or other areas frequented by minors, which may lead to enhanced penalties.

5. The defendant has a history of drug-related offenses or has been previously convicted of distribution or trafficking offenses.