The most common drug offenses that we handle are possession cases, both simple possession cases for common drugs such as cannabis/marijuana, cocaine, heroin, ecstasy/MDMA, LSD, mushrooms, etc. When those drugs are possessed in larger quantities, and with other evidence of distribution (scales, baggies, pay/owe sheets, large quantities of cash, etc.), those simple possession cases are charged as possession with intent to distribute. Keep in mind, though, that distribution only requires transfer, and does not necessarily require large quantities, or even the sale for value of the substance. Of course, we also handle DUIs involving drugs and drug metabolite, as well as enhanced possession cases where there are children and/or firearms also involved or even present.
How Is A Drug Charge Determined To Be Either a Misdemeanor Or a Felony In Utah?
The main determining factors as to whether a drug charge will be a misdemeanor or a felony are: the type and quantity of the controlled substance, evidence of distribution mentioned above, and other enhancement and aggravating factors such as, prior convictions, the presence of children or firearms, and the location (i.e. “Drug-free Zones” like parks, schools and churches), for instance.
What Is An Unlawful Controlled Substance Under Utah Law?
Those substances that are controlled by the law and deemed unlawful are set forth in a long list, at both the state law level and the federal law level. At the state level, that list is set forth in Utah code title 58 Chapter 37(4). Under federal law, they categorize the substance and publish a list annually in title 21 of the Code of Federal Regulation subsection 1308.11 through 1308.15. Substances are categorized into what are called Schedules, and they are numbered to 1 through 5. They are placed in the respective schedules based on whether or not they have a currently accepted medical use and treatment in the United States, their relative abuse potential, and the likelihood of causing dependence if and when they are abused. Schedule I substances, for instance, has no currently accepted medical use in the US, a lack of accepted safety for use under any supervision, and a high potential for abuse. Commons examples are cannabis/marijuana (under federal law), heroin, LSD, psilocybin mushrooms, and ecstasy. By contrast, schedule II substances have some accepted medical benefit and can be prescribed by a physician in certain cases, but also have a high potential for abuse. Common examples are cocaine and methamphetamine.
What Is Considered As Possession, Sale And Distribution Of Unlawful Drugs?
A determination of whether or not a given factual scenario qualifies as “possession” or “distribution” or “possession with intent to distribute” is sometimes a very important crux of our client’s case. Because these determinations are fact-driven, these analyses are usually very fact-specific and delve into the fine nitty-gritty details of the client’s case.
“Possession” is defined in Utah code 58-37-2(1)(ii), which says that possession means the joint or individual ownership, control, occupancy, holding, retaining, belonging, maintaining or the application, inhalation, swallowing, injection, or consumption. It is basically joint use with knowledge, or ability and intent to exercise dominion and control over the controlled substance. This is frequently called “constructive possession” and is how a person can in the eyes of the law possess something without it being on their person and how more than one person can be deemed to have possessed the same controlled substance.
That last part is very important, since the courts have said that constructive possession requires proof of a sufficient nexus or link between the accused and the contraband to permit an inference that the accused had both the power and intent to exercise dominion and control over the drug. In other words, knowledge alone, is not enough.
The classic Utah case is State v. Fox, 709 P.2d 316 (1985). Fox involved two brothers, Gary and Clive, living in separate bedrooms of the same home, with shared common space and a backyard greenhouse with a marijuana grow operation. The evidence showed that Clive just lived there, and although he clearly had to have had knowledge of what was going on based on things in the common space, there was no other evidence of his participation in the grow in his separate bedroom, contrary Gary, in whose room there was also marijuana, paraphernalia, and a grower’s guide. The Fox court said that the evidence against Clive was insufficient to prove that Clive constructively possessed the marijuana, and that there needs to be some to show that he was engaged in the enterprise and not a bystander, and instead had an intent to exercise dominion and control over the marijuana. Possession and constructive possession are often the crux of possession cases, as to what the facts are and whether or not they satisfy these legal definitions.
For more information on Drug Offenses In Utah, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 455-1743 today.