How can I be charged with drug delivery or dealing when I only gave the drugs to someone else and did not get paid or make money?
In Pennsylvania, the law prohibits a person from the "delivery" of a controlled substance. A delivery does not require a sale or a bargained for exchange of a drug or controlled substance. Pennsylvania law defined delivery as being the "actual, constructive, or attempted transfer from one person to another of a controlled substance, other drug, device or cosmetic whether or not there is an agency relationship." Pennsylvania case law discusses that "transfer" includes giving the drug to another person. Whether or not a profit was made or money was exchanged is immaterial. If you handed drugs to another person, you can be charged with a felony charge of delivery of a drug.
Since I have never been in trouble before, am I eligible to participate in a first-time offenders program such as ARD and thereby have my drug deliver
Many people believe that if they have never been in trouble before that they are entitled to participate in a first-time offenders program that will allow the felony drug delivery charges to be dismissed and expunged. Regrettably, there is no such entitlement. The district attorney in every county is the "gatekeeper" or decision maker with regard to participation in first time offender programs such as as Accelerated Rehabilitative Disposition (ARD). While ARD is sometimes permitted in felony drug cases, it is relatively rare and often only occurs in unique situations. In Centre County, criminal defense attorney Jason S. Dunkle is unaware of any felony drug case being resolved via participation in the ARD program. While the possibility always exists that the Centre County District Attorney or any district attorney in Pennsylvania could approve a felony drug case for acceptance into the ARD program, it is highly unlikely to occur and thereby should not be expected.
How can they charge me with possession with intent to deliver when they only found a small amount of drugs on me or at my residence?
The primary difference between a misdemeanor charge of possession and a felony charge of possession is based upon the possessor's intent, namely was it possessed for personal use or was it possessed with the intent to distribute. Possession with intent to personally use if a misdemeanor, whereas possession with intent to deliver is a felony charge. In order to prove that a person possessed with the intent to deliver, the district attorney will often present evidence that the person possessed items associated with the delivery of drugs, such as scales, baggies, safe, owe sheets, and large amounts of cash. Evidence of relatively recent deliveries of drugs is also admissible to show that the person had the intent to deliver. The presence of a large quantity of a drug provides the district attorney with a stronger argument that the person would not have possessed such a large quantity for personal use.
How can I be charged with a felony when I was only growing marijuana plants for personal use?
With a general charge of possession of a drug, if the drug is possessed for personal use, then it is graded as a misdemeanor offense. If the district attorney believes that the possession was with the intent to deliver the drug, then the offense is graded as a felony charge. While the "personal use" or "intent to deliver" issue is very important in a felony case of Possession With Intent to Deliver, such a distinction does not matter with a charge of manufacturing. Growing marijuana is considered to be "manufacturing" and is automatically a felony offense. It does not matter if the person was growing marijuana or manufacturing any drug for his or her own personal use. With regard to marijuana, while the number of plants involved can impact the sentence that is imposed by a judge, it does not impact the grading of the offense. Growing any marijuana, even one plant, is a felony offense.
How can I be charged with delivery of drugs when the only witness was a confidential informant?
While it may not seem fair or appropriate, criminal charges can, and often are, based upon the accusations of another person. Many cases are "he said, she said" or "he said, he said" types of cases. While confidential informants often play an important role in felony drug delivery investigations, most drug delivery cases has supportive evidence such as recorded phone calls, videos of the delivery, and photos of text messages. A controlled buy of drugs is a purchase of drugs by an undercover police officer or confidential informant at the direction and supervision of the police. The more evidence that the police have to corroborate the statements of the CI, the stronger the prosecution's case. The use of a CI gives the defense the ability to challenge the credibility of a CI at trial, but a person can be convicted of felony drug delivery based upon the testimony of a CI.
How can the district attorney seek to increase my sentence when I wasn't charged with delivery of drugs in a school zone?
There is a distinction under the law between a charge and a sentencing enhancement. A sentencing enhancement does not need to officially be "charged" and is not determined by a jury at a trial. Instead, mandatory minimum sentencing laws in drug cases, such as the "school zone" and "drug trafficking" enhancements, are decided by a judge at the time of sentencing. Therefore, the district attorney need not prove the applicability of the enhancement beyond a reasonable doubt, the standard applied at trials, but instead must only prove the enhancement by a preponderance of the evidence, the burden of proof at sentencing. Not only is the officer not required to charge the mandatory minimum sentencing enhancement, the district attorney does not need to provide notice of intent to invoke a mandatory sentence before trial.
How can I be charged with drug delivery if the police do not have the drugs and thereby could not test them?
In a typical felony drug delivery case, the target of the police investigation delivers a drug, such as marijuana or cocaine, to a confidential informant or undercover police officer. The drug is then sent to a police forensic laboratory for testing and confirmation that the drug is a controlled substance. Some people believe that a charge of delivery cannot be filed or prosecuted by the district attorney if the police do not have a drug to forensically test. A person can be prosecuted based on testimony from a confidential informant.
Additional resources provided by the author
For additional information about felony drug delivery charges, or about any criminal charges, contact State College criminal defense attorney Jason S. Dunkle for a free consultation.
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