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  • Exploring the Difference Between Possession and Possession with Intent

    Posted on by JACK MKHITARIAN

    Difference between possession and possession with intent.While any New Mexico drug crime is serious and can have a dramatic effect on your life, some are much more serious than others. The biggest difference between minor drug offenses and serious ones lies in what you intended to do with the drugs. Depending on the type of drug, if you possessed it for personal use, you may face misdemeanor charges. However, if you had a large amount of drugs on you, the prosecution will attempt to prove that you possessed the drugs with the intent to sell or deliver them. Possession with intent charges are always graded as felonies and can carry lengthy prison terms if you are convicted.

    How the Prosecution Can Try to Prove Intent to Deliver

    The difference between possession and possession with intent comes down to what the prosecution thinks it can prove you intended to do with the drugs. In some New Mexico drug cases, the prosecution has direct evidence that you sold or manufactured the drugs. For example, if an undercover police officer conducting a narcotics surveillance witnessed a transaction or successfully completed a controlled buy, the direct evidence (the police officer’s testimony) will serve as the basis for possession with intent charges.

    However, many drug cases lack direct evidence. For example, imagine police officers stop you for a traffic violation, claim to smell fresh marijuana, search your car, and recover three pounds of marijuana. In this situation, just because the police officers did not see you selling does not mean the prosecution will not charge you with possession with intent.

    The way the law is phrased, you do not actually need to sell drugs to be convicted of possession with intent. Instead, the government needs to prove that you possessed the drugs and that you were going to sell them at some point. When deciding how to charge you, the government will look to the surrounding circumstances. The facts that may lead a prosecutor to charge you with possession with intent include the following.

    The Quantity of Drugs

    Perhaps the most obvious of the factors that play into the difference between possession and possession with intent is the amount of drugs police find. In cases involving small amounts of drugs, possession with intent charges are rare because it is reasonable that someone would have the drugs for their personal use. However, if you were arrested with a lot of narcotics, it is more likely that the prosecutor will assume you intended to sell them. Keep in mind that it isn’t just the quantity of drugs you had on you, but also those which the police officers claimed were yours. For example, if police officers found a stash of drugs hidden in a nearby area, prosecutors may claim these also belonged to you.

    The Amount and Denomination of Money

    Prosecutors will also look at how much money you had on you when you were arrested and the breakdown of the bills. Generally, the more money you have on you, the greater the chance the government will bring possession with intent charges, especially if you have a lot of smaller bills. This is because most buyers of street drugs purchase drugs with small bills. The prosecution may also argue that you had small bills on you to make change.

    The Presence of Drug-Selling Paraphernalia

    Absent direct evidence of intent to sell, prosecutors consider what else you had on at the time of your arrest. For example, if you were stopped with drugs, unused baggies, a ledger book, a razor blade, and a scale, the government will probably argue that you possessed the drugs with the intention of selling them.

    The Presence of Drug-Using Paraphernalia

    Having certain types of drug paraphernalia on you may actually work in your favor, especially in cases that are a close call.  This is because having a way to consume the drugs, such as a pipe, lighter, or needle, may indicate that you possessed the drugs for personal use. Of course, when dealing with large quantities of drugs, having a pipe on you may not make much of a difference.

    The Packaging of the Drugs

    The final factor that prosecutors consider when determining how to charge someone is how the drugs were packaged. Generally, prosecutors will assume that anyone arrested with bulk quantities of a drug possessed the narcotics with the intent to sell them. But it is easier to beat possession with intent charges when the drugs are not broken into smaller packages. This is because most street-level drug sales involve small quantities of drugs.

    When thinking about the difference between possession and possession with intent, it really comes down to answering the question, What were you going to do with the drugs? The better the explanation you have supporting the argument that you possessed the drugs for personal use, the less likely you will face serious possession with intent charges.

    An experienced New Mexico drug charges defense lawyer can work with you to explain why you had the amount of drugs you did. In some cases, this may require calling an expert witness who can explain to the court why, in their experience, you did not possess the drugs with the intent to sell them.

    Contact an Experienced New Mexico Criminal Charges Defense Lawyer for Immediate Assistance

    If you are facing New Mexico possession with intent charges, it is critical that you reach out to an attorney to help you defend against the charges. Especially in cases where there is no direct evidence of selling, these cases can be beaten. At the New Mexico Criminal Law Offices, our respected defense attorneys work closely with clients to develop compelling defenses to even the most serious drug offenses. We offer a free consultation to all prospective clients, during which we will answer your questions and help you determine what defenses may work best in your case. To learn more and to schedule your confidential consultation, give us a call at 505-200-2982. You can also reach us through our online contact form.