The Difference Between Drug Possession and Possession with Intent to Distribute

If you are charged with straight possession in Massachusetts, it means a criminal complaint alleges you were unlawfully in possession of a controlled substance, such as oxycodone or cocaine.

But drug possession crimes are frequently elevated to possession with intent to distribute (PWID) offenses as police investigators collect ‘evidence’ and take a one-lens view.

When this happens, the risk of a wrongful conviction is high because the state’s evidence and the odds are stacked against you. Don’t sit still for this. Choosing the right drug crimes defense lawyer will greatly increase your chances of beating or significantly reducing the charges.

Some items police might pre-determine as evidence of a PWID where drugs are also present include:

  • Sums of cash
  • Small bills that are rolled-up and banded
  • A small weight or gram scale
  • Small zipper baggies –even if empty;
  • Pre-packaged units of drugs in baggies –as few as 2 or 3;
  • An extra phone, or burner phones.

Additionally, if you are found with illegal drugs in a place that police know to be a high drug dealing area, the odds of being charged with PWID increase.

What Constitutes Illegal Drug Possession in Massachusetts?

Whether police and prosecutors can prove their case of possession with intent to distribute depends on several factors, many of which are circumstantial.

The jury will be allowed to make certain inferences regarding your “intent” based on things like the purity of the drugs found, the amount, the contraband seized along with the illegal drugs (see above) and other contextual evidence.

However, at a minimum, prosecutors must first prove the possession aspect of their case against you. This requires proving:

  1. You were in possession of the illegal drug. This could be immediate physical possession OR “constructive possession” whereby you have access to the drugs where ever they’re physically located and you are in control of that access.
  2. The illegal drug you are alleged to have had possession of is, in fact, the substance claimed. This requires the Commonwealth to get the substance tested and certified by the lab. *More on this below
  3. You knew the substance in your possession was indeed a dangerous controlled drug.

Possession With Intent to Distribute – Drug Trafficking

To prove the element of intent to distribute the illegal drugs (or to deal or traffic in the possessed drug/s), the Commonwealth has to demonstrate to the fact finders, beyond any reasonable doubt, that you were going to share, sell or otherwise transfer drugs in your possession to others.

As discussed above, the prosecution will attempt to show this intent by using circumstantial evidence and perhaps also direct evidence such as witness testimony or video footage.

A PWID charge is one of the most serious felony drug offenses in Massachusetts and the penalties upon a conviction carry lengthy incarceration terms.

How much time you’ll serve if you are convicted depends upon your criminal history, the type of drug and the amount. For instance, depending on the amount, trafficking in cocaine can get you a sentence of from 5 to 20 years in state prison.

Your Legal Defense Options

The worst thing you can do when facing drug possession charges in Massachusetts is nothing. In other words, you wait it out, talk to the DA directly and simply accept the plea deal offered.

You have much better options. You should choose a private lawyer who is very experienced in defending drug crimes in Massachusetts and who knows the criminal court process and the prosecutor’s playbook –by heart.

A capable drug defense lawyer should leave no stone unturned in your case. This includes filing motions and checking the drug lab that does the testing.

Here in the Commonwealth and particularly in Western Mass, we’ve experienced some serious misconduct and scandals within these drug testing labs. Therefore, a close evaluation of their test reports is always a good place to start.

I have training in toxicology and chemistry and am a certified Forensic Lawyer-Scientist, and I know what to look for in reviewing lab tests.

Illegal drug possession and PWID cases also bring up constitutional issues such as the 4th Amendment search and seizure laws. Any of these defenses could yield a successful motion to suppress the evidence which will turn the tides heavily in your favor.

You may have other defenses depending upon your circumstances and if other people were involved. If you were accused of drug crimes along with someone else, it’s essential that you obtain the right attorney as quickly as possible.

Call 978-452-1116 to set up a free initial consultation with me today.


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Attorney Gregory Oberhauser

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Gregory Oberhauser is the ONLY attorney in Massachusetts to be distinguished as an ACS-CHAL Forensic Lawyer-Scientist by the American Chemical Society!

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