The difference between these charges centers on whether the drugs were possessed for personal use or to sell or deliver.
People charged with possession with intent to deliver a controlled substance often tell us that they are merely a user, not a drug dealer. In fact, that is the most common defense to this type of case, and it can make a substantial difference in the potential outcome. Possession of a controlled substance is a misdemeanor, but subsequent offenses can be felonies. Possession with intent to deliver is a felony, and potentially a felony with a very long jail sentence if a substantial quantity of drugs is involved or if the intended distribution is to a minor. Here is the difference between the two offenses and how it generally works in practice:
Simple Possession of a Controlled Substance. This charge applies when someone is found to have a controlled substance on their person or in their immediate control (like in their car or in their home). The offense is focused on the fact that the substance is present without additional evidence that the person planned to sell it, distribute it, or even use it.
Possession with Intent to Deliver a Controlled Substance. This is a more serious charge. In addition to having the controlled substance, the prosecution must show evidence that the person intended to distribute or sell it.
The difference between the two charges is fact-specific, which means it depends on the evidence. The kinds of evidence that helps determine which of the two offenses apply include:
- The quantity of the substance. Larger amounts suggest distribution rather than personal use.
- The presence of packaging or paraphernalia commonly associated with drug trafficking. Baggies, scales, or sealed containers with residue are a sign of distribution.
- Evidence of transactions. Large amounts of cash or records of sales usually indicate an intent to distribute.
There are, of course, other circumstances that could suggest that the drug was not merely for personal consumption and was instead for distribution. It may depend on who else had access to the drug or how the drug was labeled, among other things.
