Possession of a Controlled Substance

The State must prove 3 elements:

1. You "possessed" the drug. This means that you had the drugs under your "actual physical control." This includes any areas over which you have actual control or "intend to exercise control." Also, two people may have possession of the same item at the same time.

2. The substance is a drug ("controlled substance"). The State substantiates this by expert testimony with witnesses from the State crime lab who test whether it is actually marijuana, cocaine, heroin, etc.

3. You knew the substance was an illegal drug. This element of knowledge is fundamental in any criminal charge. There always must be some actual "knowing" that you were breaking the law.

In most cases, the debate comes down to whether you knew the drugs were present at a place (assuming they were not on your person) or whether you could have had control over them. Jurors use common sense and make the decision about your knowledge based on the circumstances of the case. If you are in a car or apartment with a group of people who all appear high when the police arrive, the jurors could draw the conclusion that you know what the drug is. Typically, if it is found in the glove compartment or under the seat of a car, it is attributed to the person that is driving or who owns the car. As to "possessing" the drug itself, it could be a valid defense that you didn't even know it was there. For example, it may have been left in your car by a friend, or may be in the pocket of a jacket you borrowed.

> Wisconsin penalties for Possession of a Controlled Substance:

• Cocaine, heroin, hallucinogenic drugs: 1 year prison (Maximum, first offense); 18 months prison (2nd or subsequent)
• Marijuana: 6 months jail (Maximum, first offense)

Possession with Intent To Deliver

1. That you "possessed" a controlled substance. This is the same test as the charge of simple possession.

2. That it was, in fact, an illegal drug.

3. That you knew or believed it was an illegal drug.

4. That you "intended" to deliver it to someone.

The jury will be instructed that "deliver" means to transfer or attempt to transfer from one person to another. "Intended to deliver" means that the defendant had the purpose to deliver or was aware that his/her conduct was practically certain to cause delivery. Again, the jury can look to your "acts, words, and statements, if any, and all of the facts and circumstances" when deciding your innocence or guilt. Also, they may consider the quantity and monetary value of the drug.

This charge is used in cases in which the amounts of suspected drugs are larger than what would normally constitute "personal use." The prosecutor will also look to see if there were many individual packages of the drug and may use this as evidence of intent to deliver. The presence of large amounts of cash, scales, customer lists, and weapons would also point toward the conclusion that you are "dealing" (as opposed to personal use) and therefore "intended" to deliver.

> Wisconsin penalties for Possession with Intent to Deliver:

The penalty schedules for possessing with intent to deliver of marijuana, cocaine or crack, heroin or hallucinogenic drugs vary depending on the weight of the drug; they range from 18 months to 25 years.

Second and subsequent offenses may increase the penalty from 4 to 6 years depending on the felony class of the current charge. The prosecutor may decide whether to charge subsequent offenses as second or decline to do so as part of a plea agreement. This is a significant change from prior law which mandated a doubling of the penalties on multiple offenders. Now, if you can show mitigating circumstances to a prosecutor, you can argue that it should not be charged as being a subsequent offense.

Penalties may also be subject to significant "enhancers" for the possession or delivery of drugs within 1,000 feet of schools, churches, parks, jails, public housing, community centers, school buses, and a number of other "public" places.

Maximum terms of confinement for major street drugs:

• Marijuana
  • 200 grams or less or 4 plants: 18 months
  • 200 to 1000 grams or 4-20 plants: 3 years
  • 1000 to 2,500 grams or 20-50 plants: 5 years
  • 2,500 to 10,000 grams or 50-200 plants: 7.5 years
  • 10,000 or more grams or more than 200 plants: 10 years
• Cocaine
  • 1 gram or less: 5 years
  • 1-5 grams: 7.5 years
  • 5-15 grams: 10 years
  • 15-40 grams: 15 years
  • 40 grams or more: 25 years
• Heroin
  • 3 grams or less: 7 years
  • 3-10 grams: 10 years
  • 10-50 grams: 15 years
  • 50 grams or more: 25 years
• Methamphetamine
  • 3 grams or less: 7.5 years
  • 3-10 grams: 10 years
  • 10-50 grams: 15 years
  • 50 grams or more: 25 years

Delivery of a Controlled Substance

The State must prove 3 elements:

1. That you "delivered" a controlled substance. "Deliver" means to transfer, or attempt to transfer, something from one person to another.

2. That the substance was a drug ("controlled substance").

3. That you knew or believed that the substance was a controlled substance (a drug).

The last element does not require that you knew the precise chemical or scientific name of the substance. If you knew this substance by its street name, then you knew it was a controlled substance, and thus illegal to deliver.

It is not a defense to argue that you delivered a controlled substance which you mistakenly believed to be a different drug, when both substances are illegal drugs.

It also does not matter how much drug was delivered: even microscopic amounts "transferred" constitute a "delivery." Even pushing the plunger on a hypodermic needle is a "delivery," according to the courts. If a person were to die by an overdose in a delivery situation, you would be liable for "first degree reckless homicide" under the Len Bias law. In addition, whether or not money changed hands has nothing to do with this charge.

> Wisconsin penalties for Delivery of a Controlled Substance:

Maximum terms of confinement for major street drugs:

• Marijuana
  • 200 grams or less or 4 plants: 18 months
  • 200 to 1000 grams or 4-20 plants: 3 years
  • 1000 to 2,500 grams or 20-50 plants: 5 years
  • 2,500 to 10,000 grams or 50-200 plants: 7.5 years
  • 10,000 or more grams or more than 200 plants: 10 years
• Cocaine
  • 1 gram or less: 5 years
  • 1-5 grams: 7.5 years
  • 5-15 grams: 10 years
  • 15-40 grams: 15 years
  • 40 grams or more: 25 years
• Heroin
  • 3 grams or less: 7 years
  • 3-10 grams: 10 years
  • 10-50 grams: 15 years
  • 50 grams or more: 25 years
• Methamphetamine
  • 3 grams or less: 7.5 years
  • 3-10 grams: 10 years
  • 10-50 grams: 15 years
  • 50 grams or more: 25 years

Drug Conspiracy

The State must prove 3 elements:

1. That you were a member of a conspiracy to commit a crime (which will also be charged).

2. That the underlying crime (drug delivery, etc.) was committed in "furtherance" of the conspiracy.

3. That, under the circumstances, the crime you are charged with was a natural and probable consequence of the crime you intended to commit.

Technically, a conspiracy is a mutual understanding to accomplish some criminal objective, or to work together for a common criminal purpose. In other words, if you agree with one or more people to commit some crime (or a series of crimes), you are a "co-conspirator." In state court, this is often charged as "Party to a Crime," which also includes "aiding and abetting" those who directly commit the crime such as a lookout or a driver.

The crime of "conspiracy" is a separate offense from being charged with the actual crime, and is used far more at the federal level. In a normal conspiracy charge, the government must show that you did some "overt act" to further the conspiracy. In federal drug cases, however, the government only needs to show that you were a member of a conspiracy, and you had the intent to advance and maintain the conspiracy (no "overt act" is required). Either way, it is not necessary that the conspirators had any express or formal agreement, or that they had a meeting, or even that they all knew each other. If you are found to be a "member" of a conspiracy to commit a crime, and that crime was committed by any member of that conspiracy, then you, and all other members of the conspiracy, are liable for that crime.

> State and Federal penalties for Drug Conspiracy:

The penalties involved would be whatever penalties apply for the underlying offense. The real problem with a conspiracy charge, particularly in Federal court, is the liability you face for the full quantities of drugs that the conspiracy as a whole handled, whether or not you had direct knowledge of all of it. In most Federal drug cases, sentences can be reduced if a defendant voluntarily chooses to become a government witness.