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Proving Intent to Distribute Controlled Substances

Posted by Dmitry Gorin | Mar 25, 2024

In California, the criminal charge of “possession with intent to distribute” a controlled substance is a more serious offense than simple possession. Specifically, it's a felony as opposed to a misdemeanor. This crime is often called “drug possession with intent to sell” and is codified under California Health and Safety Code 11351 HS.

The big question is, how do prosecutors demonstrate not only that you possessed a controlled substance but that you intended to sell or distribute it? At the issue's core lies the notion of intent, a critical factor that must be convincingly established for a conviction to occur. 

Proving Intent to Distribute Controlled Substances
Proving intent to distribute controlled substances relies on direct or circumstantial evidence.

Under the law, “intent to distribute” narcotics could be proven with direct or circumstantial evidence. Sometimes, police will have direct evidence, such as the perpetrator's statement they have drugs to sell or if they sold drugs to an undercover police officer.

However, most cases will rely on circumstantial evidence, such as the packaging of the drugs in multiple small baggies or bindles, scales, or having a large quantity of drugs.

Simply put, to convict someone, prosecutors pursuing a charge of drug possession with intent to sell must prove that intent beyond a reasonable doubt using direct or circumstantial evidence.

Generally, this evidence does not require proof that the illegal drugs were for sale; instead, only that the defendant intended to distribute or deliver them, even if they were not in exchange for something of value.

Avoiding a drug conviction for this element of “intent to distribute” is critical. These convictions are typically felonies with severe penalties, including a mandatory minimum prison sentence.

Understanding how prosecutors approach the question of intent and what the courts consider admissible evidence is crucial to knowing how to defend against the charges. 

What Types of Evidence is Used to Prove Intent to Distribute?

As noted, prosecutors typically rely on two types of evidence when attempting to demonstrate that a defendant intended to sell or distribute a controlled substance: direct evidence and circumstantial evidence.

Drug Possession with intent to Sell
An example of direct evidence is selling drugs to an undercover police officer.

A controlled substance is a drug or other chemical compound regulated by law. Both state and federal laws regulate these substances, though most state laws are based on the United States Controlled Substances Act.

Direct Evidence

Direct evidence refers to straightforward, clear proof that directly supports a fact. Direct evidence of the defendant's intent to sell a controlled substance shows their intent to do so without the need for inference. 

Direct evidence is the kind that does not require inference or assumption to connect it to the crime, such as selling illegal drugs to an undercover law enforcement officer during a video-recorded sting operation. 

Direct evidence of intent to distribute a controlled substance can be rare, but when available, it significantly strengthens the prosecution's case.

Examples of direct evidence include:

  • Verbal admission: If the accused has been heard verbally admitting to intending to sell or distribute the drugs, this admission can serve as powerful direct evidence against them. For example, perhaps they were caught on tape discussing a plan to sell drugs, or maybe an undercover officer overheard a conversation to that effect.
  • Eyewitness testimony: Testimony from individuals who have directly observed the accused selling or distributing drugs can be considered direct evidence—for example, a law enforcement officer may have seen a drug deal in progress.
  • Documentary evidence: Text messages, emails, or written notes that explicitly discuss plans to sell or distribute drugs fall under direct evidence. These communications can be particularly damning if they include details about quantities, prices, and distribution methods.

Circumstantial Evidence

Unlike direct evidence, circumstantial evidence requires the jury to make inferences to connect the evidence to the crime, such as possessing baggies, scales, packaging tape, or a large amount of cash.

These individual pieces of evidence do not necessarily prove the defendant's intent. However, prosecutors will argue that the “totality of the circumstances” shows the defendant intended to sell the drugs. 

Most “intent to sell” drug convictions rely solely on circumstantial evidence. Indirect evidence suggests a fact by implication or supports a logical conclusion about the defendant's intent.

Examples of circumstantial evidence may include:

  • Large quantity of drugs: Possessing a quantity of drugs that exceeds personal use levels can imply intent to distribute. This inference is especially strong when the drugs are packaged in a manner consistent with distribution.
  • Scales and packaging materials: The presence of scales, baggies, or other packaging materials near the controlled substances can suggest preparation for distribution.
  • Large sums of cash: Large amounts of cash, particularly in small denominations, found along with controlled substances may indicate drug sales.
  • Frequent visitors: A high volume of people coming and going from the accused's residence or location, especially if stays are brief, can suggest transactional activities related to drug distribution.

What are the Common Defenses?

While circumstantial evidence is arguably weaker than direct evidence, prosecutors rely almost exclusively on circumstantial evidence in many cases (and often successfully) to prove intent to distribute. 

For this reason, most defense strategies against these charges center around casting doubt or uncertainty around the circumstantial evidence presented. 

Additionally, since the penalties for possession with intent to distribute are much greater than those for simple possession, it's a common strategy to challenge the evidence showing intent to get the charges reduced. This is most common in cases with direct evidence of possession.

Common defenses along these lines include:

  • Lack of Knowledge: The defense may argue that the accused was unaware of the presence of the controlled substances. This argument challenges the prosecution's claim that the defendant had control over the drugs with the intent to distribute them.
  • Personal Use: In some cases, the defense can argue that the drugs were intended for personal use, not distribution. This might involve presenting evidence of the accused's substance dependence or other relevant personal circumstances.
  • Unlawful Search and Seizure: If it can be shown that law enforcement violated the accused's Fourth Amendment rights with an illegal search and seizure, the evidence gathered could be deemed inadmissible in court.
  • Entrapment: Entrapment occurs when law enforcement induces a person to commit a crime they would not have otherwise committed. If the defense can prove entrapment, the charges could be dismissed.

Contact our law firm for more information. Eisner Gorin LLP is based in Los Angeles, California.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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