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How Are Felony Drug Possession Charges Determined?

Interviewer: What quantity of drug does someone have to have in their possession in order to be charged with a felony?

The Intent to Sell Component Will Result in Felony Drug Charges 

David Horan: It’s not the amount.  Obviously if a person had 10 pounds of marijuana, they wouldn’t be charged with possession of marijuana.  They most likely will be charged with possession with intent to sell marijuana. The intent to sell component is what would make that a felony.

The amount of drugs is not one of the criteria.  There is a schedule of drugs.  The State Department of Health and Human Services has copied the DEA schedule of one through five. Any controlled drug on schedules one, two, three, or four would be a felony. Marijuana and drugs on schedule five would be misdemeanors.

Felony Drug Cases are More Labor Intensive to Prosecute and the Prosecution Has Some Discretion in the Level of Charges

The various drugs that I mentioned, such as the oxycodone, the crystal meth, the heroin, the cocaine, and the illegal possession of the various pain-killing medications—possession of those drugs would be felonies.  The prosecutor and the police would have to make a judgment call as to whether or not they really want to tag the person with a felony conviction. If they do so, they then have to go through the effort of putting the case into the Superior Court and undergoing a possible jury trial to get a conviction.

I have a client charged right now with a felony offense of possession of morphine.  That sounds bad, but what the case really is just possession of one morphine sulfate pill.  Morphine sulfate is a highly potent pain killer medication.

She’s accused of possession of the one pill.  Erratically, that’s a felony.  I’d to believe prosecutor would see fit to characterize that as a misdemeanor offense. That would bring the charge down into the District Court as opposed to doing it in Superior Court. But that’s a judgment call the prosecutor has to make.  That’s one of the approaches with respect to felony drug offenses.

In the first two to six weeks that the case is pending, the effort made by the defense is to say, “You don’t have to charge it.  You don’t have to go to the grand jury and get an indictment.  Let’s resolve the case in a District Court as a misdemeanor.”

Depending upon the client’s background, the circumstances of the arrest and the seizure of the drug, they might actually agree to that.

When Is a Drug Charge a Federal Charge?

Interviewer: What are some of the ways that people could be facing a federal conviction?  You mentioned earlier about the $40,000 car.  What are some ways that could someone can wind up in federal court?

Federal Court Has Sentencing Guidelines as Opposed to State Court

David Horan: Various law enforcement agencies are aware of the resources the U.S. Attorney’s Office has with respect to going forward with drug forfeitures. They’re also aware of the fact that in Federal Court they have sentencing guidelines.

In State Court, they do not.  So in State Court, a person could be charged with sale of cocaine and be looking at a possible sentence of anywhere between zero and seven years in custody, anywhere between zero and $50,000 in fines.

If the person is convicted or if the parties negotiate a plea where the terms are agreed upon, the sentence could be any number that the judge is willing to impose. As I say, it could be effectively nothing such as a suspended sentence or probation up to three and a half to seven years in State Prison.

In the Federal Court system, they have sentencing guidelines.  Sentencing guidelines indicate: the criminal record history of the individual and where the person fits in the grand scheme of things with a criminal history between levels one through five, five being the most serious.

Then they go into the federal sentencing guidelines to find out what is the recommended range of sentence for an individual with this particular history. The length of the sentence goes up dramatically with respect of increasing quantities of the drugs.

So that an individual that is convicted of selling cocaine over the course of several years and is accused of the possession of 10 or 12 kilos would get a significantly harsher sentence in Federal Court than what they might in State Court.  The charging decision is made between the county attorney staff and the federal prosecutor staff in terms of which court you’re going to go to, one or the other.