Avoiding Intent to Distribute Mandatory Minimum by Pleading Simple Drug Possession in Pennsylvania

Fingerprinted due to a drug arrest

Many individuals believe that to be convicted of a crime involving illegal drugs, weapons, or any other type of contraband a person must actually possess the item on their person, which is simply not the case. In fact actual possession is not a requirement for a conviction. The prosecution can meet its burden of proof of guilt beyond a reasonable doubt, based on the concept of constructive possession. While constructive and actual possessions are very different, a person is subject to the same criminal penalties if they are convicted including mandatory minimum sentences.

Constructive possession requires that the prosecution show that (1) the individual had the power to exercise control over the item and (2) the individual had the intent to do so. While the mere possession of an item in the area where an individual is arrested is not sufficient, the prosecution can use other factors which could lead to a conviction. For example, items found in an individual’s trunk can be problematic for a defense attorney if the car is registered to the individual or the prosecution can show that the individual was the exclusive user of the car.

The same rule would apply to apartments, bedrooms, or living areas. Evidence helpful to the defense would be equal access or control to the areas in question. However, equal access such as multiple roommates having keys to the apartment is a double edged sword as law enforcement can bring charges against every roommate who had access to the illegal drug. While the mere presence of an illegal item is not enough to convict a person, your defense attorney must make that argument and persuade a judge or jury.

It is important to keep in mind, however, that even if a person is found to constructively possess any illegal drugs the weight itself is not enough to trigger a mandatory minimum sentence. The prosecution must still establish intent to distribute the items. Therefore prosecutors try to focus on the item’s packaging and other paraphernalia found near the items or on the individual’s area of immediate control. However, there is a substantial difference between a conviction for drug distribution and simple possession. In Pennsylvania, simple possession is a misdemeanor whereas intent to distribute is a felony with a mandatory minimum sentence.

Since simple drug possession is a misdemeanor, it is possible to qualify for an intervention program like Veterans Court, Drug Court, Home Confinement or the Accelerated Rehabilitative Disposition Program if it is your first offense and other factors.

If you are arrested for possession or on any drug related charge, please contact Gregory J. Spadea online or at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

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