Illegally possessing a controlled substance can lead to severe consequences. If you intend to sell that substance or give it to someone, those consequences can be even greater.
If you’re facing charges of possession with intent to distribute in Illinois, it’s vital to turn to an experienced criminal defense attorney. Is possession with intent to distribute a felony? What sentence could you face if convicted? Let’s take a closer look.
Important Distinctions: Drug Possession vs. Possession With Intent
Under Illinois state law, it’s illegal for anyone to possess any of the following with the intent to sell or deliver:
- A controlled substance
- A counterfeit or imitation controlled substance
- A controlled substance analog
This means that if you have fake drugs you intend to sell, you can be charged with possession with intent to deliver, even if the substance isn’t dangerous.
A “controlled substance analog” is a substance that’s structurally similar to a particular controlled substance. Analogs function almost the same way, but because they’re technically different substances, some people try to use them to skirt drug laws. Controlled substance analogs are sometimes referred to as “designer drugs.”
Possession-with-intent-to-distribute penalties are almost always more significant than penalties for possession alone. Drug possession, which is sometimes referred to as “simple possession,” usually involves having small amounts of a controlled substance for personal use.
A charge of possession with intent to distribute means that the police have reason to believe you intend to sell or otherwise disseminate the drugs in your possession. This contributes to the illegal drug trade, making it a more serious crime.
Drug Distribution vs. Drug Trafficking
Controlled substance possession-with-intent charges are serious, but in many cases, they aren’t as serious as drug-trafficking charges. The two sound similar, and they both center around an intent to distribute illegal drugs in one’s possession.
However, possession-with-intent-to-distribute charges are more focused on one’s intention to sell or distribute drugs than on the quantity of a given substance. Typically, people charged with possession with intent are participating in small, local distribution networks.
Trafficking, meanwhile, involves moving large amounts of illegal drugs. In most cases, the sheer quantity of substances involved is enough to support the charge of such a violation — police don’t have to gather additional proof that the defendant intended to sell or distribute the drugs.
For instance, in Illinois, you can be arrested for possession with intent to sell any amount of marijuana. To be charged with trafficking, you must bring 2,500 grams (about 5.5 pounds) of marijuana or more into the state.
Federal vs. State Treatment of Possession With Intent to Distribute
Drug charges, including charges of possession with intent to distribute, can be highly complex. State or federal drug laws may apply depending on the situation.
Through the Controlled Substances Act (CSA), the federal government classifies drugs by controlled substances schedules (Schedule I–V drugs). Possessing Schedule I drugs with the intent to distribute is generally more serious than possessing Schedule II or Schedule III drugs with the same intent.
However, unless you’re being charged with a federal crime, the Illinois Controlled Substances Act will probably be the primary law governing your case. It bears some similarities to the federal law, but most of the time, federal penalties for drug-related offenses are more severe than state-level penalties.
Mandatory minimum sentences typically apply when a person commits a drug offense, but state drug-sentencing guidelines usually offer judges some latitude.
Factors That Influence Whether It’s Charged as a Felony
Is possession with intent to distribute a felony? In Illinois, the answer is yes. However, in some circumstances, you may be allowed to plead guilty to a simple possession charge or an even lesser offense.
Misdemeanor drug charges still have consequences, but they’re much less severe than felony charges. Here are some of the main factors that determine the level of drug-related charges:
Type of Drugs
Controlled substances are divided into five schedules, or categories. Schedule I drugs are considered the most dangerous, while Schedule V drugs are considered the least dangerous.
People facing charges involving more dangerous controlled substances will generally face harsher penalties. For example, with all else being equal, you’d likely receive lighter penalties for possession with intent to sell marijuana than for possession with intent to sell cocaine.
Quantity
There’s a close relationship between the quantity of drugs and felony classification. If you surpass a certain possession threshold, you may be charged with drug trafficking.
Even if you don’t meet the trafficking threshold, having larger amounts of a controlled substance may lead to harsher penalties for possession-with-intent-to-distribute violations.
Evidence of Intent
If a law enforcement officer wants to charge you with possession with intent to distribute, they must be able to point to clear evidence suggesting you intended to sell or give away drugs. Here are some types of evidence prosecutors sometimes leverage:
- Large quantities of drugs
- Scales, baggies, and related equipment
- Texts or other communication records about sales
- Having multiple kinds of prescription drugs with no valid prescription
As part of your defense, your lawyer might break down (and try to refute) the prosecution’s evidence of intent. This part of the case can be somewhat subjective, and a skilled lawyer may be able to use that fact to your advantage.
Prior Convictions
If it’s your first offense, the court may offer you some level of leniency, depending on the circumstances. However, if you have a prior conviction for a similar offense, the court may see this new charge as evidence of a continuing criminal enterprise.
If there’s a mandatory minimum term for your current charge, having a prior conviction almost guarantees you’ll serve more time.
Possessing a Dangerous Weapon
Being charged with a possession-with-intent-to-distribute felony in Illinois is already serious. However, someone who violates controlled substance laws while in possession of a dangerous weapon could face stricter possession-with-intent penalties or even upgraded felony charges.
Why is this? To police, having a firearm or other dangerous weapon may signal that you’re trying to protect a drug-trafficking operation.
Possessing Drugs in a Protected Area
Enhancing factors (firearms, school zones, prior convictions) can all dramatically increase the penalty for a possession-with-intent drug conviction.
Many people are already aware of the fact that firearm possession and prior convictions can drastically increase penalties. However, they may not know that bringing drugs to a child care facility or private elementary or secondary school can do the same.
Bodily Injury or Death
If you sell or give away controlled substances and a recipient suffers serious bodily injury or death, you could face additional criminal charges. Such a violation also would open you up to the possibility of civil lawsuits.
Plea Bargains
Plea bargaining in drug cases is common across the country. The court system wouldn’t be able to handle every single case going to trial, so instead, defendants often plead guilty to a lesser charge to avoid trial. Plea bargains aren’t guaranteed, and they’re offered at the prosecutor’s discretion.
However, having a skilled lawyer on your side may make it more likely that you’ll qualify for a plea deal. Your attorney may be able to negotiate a reasonable plea bargain, and if they have a successful record of defending clients facing drug charges, the prosecution might be more inclined to accept.
Prosecutors know they must prove your guilt beyond a reasonable doubt. A good lawyer can often plant seeds of doubt in jurors’ minds. In some cases, that becomes enough for an acquittal.
The Role of Controlled Substance Schedules
A charge of possession with intent to distribute in St. Louis (or anywhere else) is never a good thing. However, the penalty for that charge may be lighter or heavier depending on the drug involved. Here’s a brief overview of the five schedules:
Schedule I Substances: High Abuse Potential, No Accepted Medical Uses
Schedule I includes marijuana (although Illinois adults may legally have up to 30 grams of cannabis flower, five grams of concentrate, and 500mg of THC-infused products). It also includes heroin, LSD, ecstasy, and many other well-known drugs of abuse.
Schedule II Substances: High Abuse Potential, Limited Accepted Medical Uses
This category includes cocaine, fentanyl, and methamphetamine. It also includes several well-known pharmaceutical drugs, including Oxycodone, Vicodin, Adderall, and Ritalin.
Schedule III Substances: Low-to-Moderate Abuse Potential, Accepted Medical Uses
Schedule III substances include most anabolic steroids, ketamine, and other medically useful compounds with low-to-moderate risk for abuse.
Schedule IV Substances: Low Abuse Potential, Accepted Medical Uses
Schedule IV includes several common prescriptions like Tramadol, Ambien, and most benzodiazepines (Xanax, Ativan, Valium, etc.).
Schedule V Substances: Lowest Abuse Potential, Accepted Medical Uses
This schedule primarily consists of low-risk medications. Most aren’t popular drugs of abuse, though Schedule V does include cough syrups and other preparations with low concentrations of codeine.
Penalties Beyond Felony Classification
Is possession with intent always a felony? Yes, at least in Illinois.
That said, not every possession-with-intent-to-distribute felony is equally severe. The law outlines several distinct mandatory minimum sentences for different types of controlled substances. These highly individualized sentences fall into a few different felony classifications.
Class X Felony
In Illinois, a Class X felony is the most serious type of felony aside from first-degree murder.
Most cases of possession with intent to distribute a controlled substance aren’t Class X felonies, but if you have a prior conviction or there are other aggravating factors present, it may lead to this serious charge. Class X felonies have a mandatory minimum sentence of six to 30 years in prison.
If you’re convicted of a Class X felony and you were in possession of more than 100 grams of certain controlled substances and imitation controlled substances, you could be fined either $500,000 or the full street value of the substance.
Class 1 Felony
A Class 1 felony is a step down from a Class X felony in terms of severity. A defendant convicted of a Class 1 felony must serve a mandatory minimum term of four to 15 years in prison. With aggravating circumstances (like bringing drugs to a child care facility), however, the sentence could be extended up to 30 years.
Additionally, someone convicted of a Class 1 felony may owe a fine of up to $250,000.
Class 2 Felony
Someone who possesses smaller amounts of highly controlled substances or imitation controlled substances could be charged with a Class 2 felony. A defendant convicted of a Class 2 felony will usually be sentenced to three to seven years in prison.
If the individual is part of a continuing criminal enterprise or has a prior conviction, or there are other aggravating factors present, possession-with-intent sentencing guidelines allow the term to be extended to 14 years. A person convicted of a Class 2 felony may also be ordered to pay a fine of up to $200,000.
Class 3 Felony
A Class 3 felony conviction for a controlled substance is one of the milder punishments, but it can still lead to a two-to-five-year prison sentence. Like other controlled substance violations, the term can be extended if the circumstances call for it.
A person who violates Illinois drug laws and is convicted of a Class 3 felony may be fined up to $150,000.
The mandatory minimum possession-with-intent penalties can be devastating to face if you don’t have a qualified attorney working on your case. Our team can help you understand the penalties you could be subjected to under state or federal law.
Common Misconceptions About “Intent to Distribute”
There are many misconceptions around possession-with-intent-to-distribute charges. One of the most common is that you must be caught selling a controlled substance for these charges to stick.
As you may already have discovered, this isn’t the case. It may be easier to prosecute someone who violates the law if they’re caught in the act of selling, but police can point to other evidence (like cash and scales) to support a charge of possession with intent.
In a similar vein, some people believe they can’t be prosecuted if they don’t actually sell or give away any controlled substance. However, according to the actual text of the law, the prohibited acts are (1) the possession of illicit drugs or other controlled substances and (2) the intention to sell or otherwise distribute them.
It’s important to note that Illinois courts will usually look at all facets of a controlled substance case before handing down a sentence.
Imagine that two people are charged with possession with intent to distribute a controlled substance. One such person has packaged marijuana to resell for some side income, but they’ve yet to make any sales. The other has been transporting marijuana across state lines to sell for years.
Because the latter individual has been an active part of the drug trade for quite some time, they would likely face harsher penalties than the person hoping to dabble in controlled substance sales.
Why Legal Representation Is Crucial in These Cases
Now that you know the answer to the question, “Is possession with intent to distribute a felony,” you can likely see why anyone who violates controlled substance laws in Illinois should contact a proven criminal defense lawyer as soon as possible.
Possession-with-intent legal defenses can be tricky, but an attorney experienced with controlled substance violations will be able to put together a plan for such controlled substance cases.
Many people think there’s no way an attorney can get them off the hook if they’ve violated state or federal law. While having a lawyer doesn’t guarantee an acquittal, the right attorney will explore all available options for an effective defense.
For instance, part of a defense lawyer’s job is to protect their clients’ rights. If law enforcement gathered evidence of prohibited acts through an unlawful search, that evidence may not be admissible in court.
For example, if a police officer found drugs in your car during a traffic stop but had no probable cause to pull you over, none of the evidence or testimony stemming from the traffic stop could be used in court.
Have You Been Arrested?
If you’ve been arrested for possession with intent to distribute, your freedom may be on the line.
Even first-time-offender drug charges can be extremely serious, which means that the assistance of a skilled criminal defense lawyer is critical. Whether you need your felony drug charges explained or are ready to jump right into planning, our team can meet you where you are.
At Kostopoulos Law Group, we have more than 20 years of combined legal experience. We firmly believe everyone is innocent until proven guilty, and we strive to deliver superior, personalized defense strategies.
If you’re facing criminal charges, don’t wait to act. Contact us today to learn more about how we can help.
