This charge is used where the amounts of suspected drugs are larger than what would normally constitute "personal use." If you have a half pound of marijuana or a few ounces of cocaine, arguing personal use would be difficult. However, it would still be possible if there was no other evidence that you were dealing. The prosecutor will also look to see if their were many individual packages of the drug - corner cuts of cocaine, ½ ounce baggies of marijuana, etc. He will use this as evidence of intent by using the cop as an "expert" on how dealers package and deliver their "product." The presence of large amounts of cash, scales, customer lists, and weapons would also point toward the conclusion that you are "dealing" and therefore, "intended" to deliver.
State of Wisconsin -vs- You
In order to win a conviction, the prosecuting attorney must prove 4 elements of the crime of possession of a controlled substance with intent to deliver or sell.
An arrest for possession of a controlled substance is an accusation. It is not a conviction. The state must prove its case.To "deliver" means to transfer or attempt to transfer from one person to another. An "intent to deliver" means that the defendant had the purpose to deliver or was aware that his or her conduct was almost certain to cause a delivery to occur.
Quantity of drugs
Quantities matters! Possession of small quantities of drugs is usually charged as possession. While still a crime, possession carries lesser penalties than possession with an intent to deliver or sell.
Larger quantities will almost always result in the district attorney bringing criminal charges for possession with an intent to deliver or sell (dealing). A half of a pound of marijuana or a few ounces of cocaine would be considered as a large quantity.
Packaging of drugs
It will matter whether the drugs were packaged for sale. For example, if marijuana is packaged into baggies or cocaine into corner cuts, the district attorney will undoubtedly pursue charges for dealing. Subsequently, at trial, the prosecuting attorney will call an expert (the cop) to testify as to how dealers package and deliver their "product" for sale.
Guns - Scales - Cash - Weapons
The entire justice system, from the police making the arrest to the prosecuting attorney prosecuting the case and the judge presiding over the case, will look for other evidence of drug dealing. Items such as large amounts of cash, scales, customer lists and weapons (sawed-off shotguns, handguns, brass knuckles, knumbchucks) that were confiscated during the arrest go towards substantiating charges for dealing. Any evidence of dealing will likely result in charges of possession with intent to deliver or sell.
Jury Instructions
At the conclusion of a criminal trial, the judge "charges the jury", which means, in short, that the judge gives the jury instructions that include an explanation of the law and how to apply the law to the case to determine a guilty or not guilty verdict. The jury will be told that they can consider the amount and type of drugs involved, whether any evidence exists to prove dealing, and any actions, words or statements during, before or after the alleged or attempted delivery or sale.
penalty for intent to deliver or sell
The penalty for a conviction of an intent to deliver or sell drugs charge vary according to the type of drug and the quantity of the drug. A chart of the penalties by type and quantity appears on Drug Penalty.
Common Defense To Possession with intent to deliver or sell charges
Previously, Wisconsin law required penalties to be doubled for multiple offenders, so any drug related criminal conviction would result in twice the penalty in a subsequent conviction. Now, if mitigating circumstances for the first conviction can be proven to the prosecuting attorney, then an argument can be made that the second should not be charged as a subsequent offense.
For example, the charging district attorney would likely prosecute a half of a pound of marijuana or a few ounces of cocaine as dealing because of a sufficient quantity for the purpose of delivering, selling or distributing. However, if there is no other evidence to indicate dealing, it may then be possible to argue that the drugs were for personal use.
In most cases, the real debate will come down to whether or not the defendant "knew" that the drugs were even there (assuming that the drugs were not on the defendant's body). Perhaps the defendant lent his or her jacket or car to a friend, and the friend accidentally left some joints in the jacket pot or a bag of pot in the glove box.
Another frequent question is whether or not the defendant could have even had control over the drugs. And lastly, whether or not the defendant could have even known he or she was breaking the law. It is entirely possible for a person not to even know that a substance is a drug. For example, some people may not even recognize hits of crystal methamphetamine (crystal meth), and cocaine can be mistaken for powdered sugar or baking soda.
Jurors however use common sense. They make their decisions based on their belief of the defendant's knowledge and the circumstances of the case that they learn about during the trial. If a defendant has prior convictions for possession of a controlled substance, or if a defendant associates with other people who have prior's, the jury would likely have a very difficult time believing that the defendant lacked the actual knowledge that the substance in his or her possession was an illegal drug.
For a free initial consultation to discuss your situation, please call 1-866-493-0726, e-mail -
- or send your case information to the attorneys at Birdsall Law Office, S.C..
The criminal defense attorneys at Birdsall Law represent people across the state of Wisconsin and routinely appear in the counties (and cities) listed below.
