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  • Can You Get Probation for a Felony Drug Charge?

    Posted on by JACK MKHITARIAN

    Drug charges carry minimum sentencing in the state of New Mexico. Therefore, it is unlikely that you would receive probation for a felony drug charge – even if it is your first offense. Also, if you are charged with a felony drug crime, you may receive mandatory sentencing that will involve multiple months in jail. The length of time you spend in jail or prison will depend on what type of felony drug charges you are convicted of.

    Just because you are facing felony drug charges does not mean you are guaranteed to go to court or spend years in jail. The sooner you hire a skilled defense attorney, the better the outcome may be in your case. Your attorney may be able to negotiate a lesser charge, which then opens the potential for serving probation rather than a mandatory jail sentence.

    To understand why probation is not possible for a felony drug charge, you need to understand the minimum sentencing used by judges in court.

    How Felony Sentencing Works in New Mexico

    Like most states, New Mexico has mandatory minimum and maximum sentences available for felony crimes. Unfortunately, it is hard to predict what a judge will sentence you with because they have a range to work with. Certain factors in your case may increase or decrease the amount of time the judge sentences you to jail. If you are a repeat offender or labeled as a habitual offender, the judge can apply a harsher sentence. If you are a first-time offender, the judge may allow for a lighter sentence or you may qualify for a rehabilitative program.

    There are no guarantees that you will qualify for a lesser sentence. Instead, it comes down to how your defense is laid out and how strong the prosecution’s case is against you. Hiring an attorney is the best way to reduce your sentence or chances of serving the mandatory sentence for a felony drug charge.

    Drug Possession Can Be a Felony

    Most offenders are surprised to find out that even drug possession can be considered a felony. The amount of drugs in your possession at the time will determine whether you face a misdemeanor or felony charge. If the amount found on you is small enough to be deemed for personal use only, the state may charge you with a misdemeanor. In a misdemeanor case, there is still a jail sentence attached but your attorney may be able to negotiate probation if this is your first offense.

    On the other hand, if you are charged with a felony for something more serious, such as possession with intent to distribute, you could face several years in state prison without any chance of probation.

    Drug Trafficking Is Almost Always a Felony

    Rarely will someone arrested for drug trafficking be charged with a misdemeanor. Drug trafficking is a serious crime that includes transporting and delivering controlled substances. You do not have to physically sell the drug to be charged and convicted of drug trafficking. The mere act of transporting the drug is all that is required to charge someone with drug trafficking.

    Drug Distribution Is Also a Felony

    Possessing illegal substances can result in a felony, and distribution will definitely result in a felony drug charge. Distribution includes giving substances out for free, having the intent to distribute the illegal substance, or being caught in the act of an actual sale. You can be charged with drug distribution even if you were not selling the illegal substance at the time of your arrest. When you have a high enough volume of illegal substances on you, or you possess other equipment that indicates a larger operation, you are more likely to face distribution charges.

    How Long of a Prison Sentence Would I Face?

    Depending on the degree of felony you are charged with, your prison sentence can be a couple of months or up to a few years.

    Here is the prison sentence you risk if you are convicted of felony drug charges:

    • Fourth-Degree Felony – A fourth-degree felony is the lowest tier felony. Even so, you face up to 18 months in a state prison if convicted of a fourth-degree felony.
    • Third-Degree Felony – A third-degree felony is harsher than a fourth degree, and you can spend up to three years in a state prison if convicted.
    • Second-Degree Felony – While not as common in drug crimes, there are those rare instances a second-degree felony applies, and with that comes up to nine years imprisonment.

    Factors That Play a Role in Sentencing

    As stated before, certain factors can play a role in your sentence. That is why your hearing for your sentence is separate from the actual case trial. Once a jury convicts you or you agree to a plea bargain, the judge will review the facts of the case and then decide what sentence is appropriate based on those facts.

    In drug offense cases, the court does want to prove that they will not tolerate these types of crimes and therefore, you can face serious penalties. Regardless, a judge is limited to the minimum and maximum sentence allowed based on the type of crime you are convicted of. The factors that allow them to pick between that minimum and maximum include:

    • The type of drug you were carrying, possessing, selling, or transporting. The class of illegal substance that you were caught with will definitely influence how many years you spend in jail. Substances that are considered more dangerous to the public, such as cocaine, would see more years in prison versus an over-the-counter medication.
    • How much of the substance you were carrying. The statute is very clear in tying the volume of the substance to the sentence. The higher volume at the time of your arrest, the more likely you are to receive a maximum sentence.
    • Whether this is your first offense or a subsequent one. The court is not as harsh on a first-time offender as they are on someone with repeat drug offenses. If you have multiple convictions for drug crimes on your criminal record, you can expect the judge to veer in the direction of a maximum sentence.
    • Whether minors were involved in your possession or distribution. If you were caught distributing illegal substances to minors, you will have a mandatory minimum sentence applied to your case. Furthermore, the court will impose an enhanced sentencing, which means that you will have years added on top of the mandatory minimum. Likewise, if your alleged felony drug crime was committed near a school, even if you were not selling those drugs to minors, you may face an enhanced penalty.

    When Does Probation Apply?

    As you can see, most drug crimes carry felony charges. But your attorney may be able to negotiate a plea bargain where you plead guilty to a misdemeanor offense. This is one of those rare opportunities where you may be able to serve probation rather than actual jail time. The only way to see if you could qualify for a sentence of probation is to speak with a defense attorney.

    The team at New Mexico Criminal Law Offices can review the facts of your case and help determine if you would qualify for such leniency.

    To get started, schedule a free case evaluation with our legal team by calling us or requesting more information online.