Massachusetts Drug Possession, Possession with Intent to Distribute and Trafficking

What if I have been charged with Possession, Possession with Intent to Distribute or Trafficking in a Controlled Substance in Massachusetts?

Controlled substances in Massachusetts are divided into "classes" or groups of drugs.  Each "class" refers to many different substances.  Our legislature has decided that certain substances must be "controlled" such that they cannot be possessed or distributed at all, or only with a medical prescription.  Each class carries various penalties.  Finally, each class orders penalties depending on whether you are convicted of possession, possession with intent to distribute, distribution or "trafficking." 

Massachusetts General Laws Chapter 94C, section 31 defines the classes of controlled substances.

Class A Substances in Massachusetts include many narcotics sold in "pure," liquid or powder form, with heroin, morphine, methamphetamines, ecstasy and ketamine  ("Special K") being the most prominent.

Class B Substances in Massachusetts also include many narcotics sold as "pure" or in powder or liquid form, with cocaine, LSD, opium, oxycodone and oxycontin being the most common.

Class C Substances in Massachusetts include narcotics considered less severe.  They are often prescription drugs such as Klonopin, Valium, Vicodin (Hydrocodone) and Ativan.  Milder hallucinogens like psilocybin magic mushrooms and mescaline are included.

Class D Substances in Massachusetts are marijuana and hashish. It is not a crime to possess about an ounce (under 30 grams) of marijuana in Massachusetts.

Class E Substances in Massachusetts are defined more broadly as less powerful prescription drugs that contain lesser amount of codeine, morphine or opium, or "prescription drugs other than those included in Classes A, B, C, D."

Massachusetts "Designer Drugs"

Our legislature has outlawed substances that are known as controlled substance "analogues."  To be a controlled substance analogue, a drug must have a chemical structure that is substantially similar to the chemical structure of a controlled substance, and also either have a substantially similar effect on the user.

These substances are engineered to look like and have similar effects as known controlled substances, but do not use the identical chemicals or compounds identified in Massachusetts' controlled substances laws.  These manufacturing variations can permit possession of sometimes very powerful and very dangerous substances to be non-criminal.  The Massachusetts designer drug law now makes possession of such substances criminal.

Such a broadly written law can also be unfair.  In Massachusetts, fairness demands that we have "notice" that our conduct is criminal before we can be charged and convicted. This is the purpose of having clearly defined criminal laws. Laws that are overly broad and unclear do not provide us with clear notice that we are exposing ourselves to criminal prosecutions.  Laws written so broadly can be attacked as being overly vague or broad. Criminal cases can be dismissed in Massachusetts on this basis.

Possession, Intent to Distribute and Trafficking

Possession can be actual or "constructive."  This means that a person doesn't need to have the substance on his or her body to be in possession if they know where the substance is and intend to "own" it by "exercising dominion and control" over the substance.  For example. you "possess" the clothing in your closet even you are not wearing it at a given time.

In Massachusetts, the prosecution usually must prove "intent to distribute" with circumstantial evidence.  This requires evidence of a controlled substance in larger quantities and packaged in a way that is "consistent with distribution" or sales. Other things, such as scales, cutting tools, packaging tools or large amounts of money can help the prosecution prove "intent to distribute."

Believe it or not, "trafficking" is easier to prove than "intent to distribute" in Massachusetts.  An accused person can be guilty of "trafficking" in a controlled substance simply if he or she possesses that controlled substance at the particular weight that the law deems to be "trafficking" weight.

How Do I Defend Against a Massachusetts Drug Crime?

Defenses to drug offense vary depending on the circumstances of each case.  

Lack of Evidence of Possession

Very often, the police in Massachusetts charge more than one person with possession of a particular substance, simply because several people are present in a car or a residence, for example.  These are unfair charges that can often be dismissed, or defeated at trial, for any possession offense.  This includes possession with intent to distribute a controlled substance or even trafficking a controlled substance in Massachusetts. "Constructive possession" of a controlled substance in Massachusetts requires more than simply being present in the area where the police recover the drug.  Even presence and actual knowledge of a controlled substance is not enough to convict, or even to charge, someone with possession.  The evidence must allege, and eventually prove, knowledge and an intent to exercise "dominion and control" over the substance.   Comm. v. Boria, 440 Mass. 416 (2000).

Lack of Evidence of "Intent to Distribute"

The police may sometimes accuse a person of intent to distribute where in fact possession was for personal use only in Massachusetts. We have won many such cases for clients wrongly accused of this serious offense.  It is not uncommon for an individual to purchase a large quantity of a substance, such as marijuana, for personal use.  This is similar to buying a case of beer or wine rather than an individual bottle.

In Massachusetts drug cases, only very large quantities of a controlled substance can be enough to charge and convict of intent  to distribute without additional evidence. Comm. v. Bongarzone, 390 Mass. 326 (1983).  Normally, the police must present expert testimony that the surrounding evidence is consistent with intent to distribute. This evidence is in the form of facts and objects that drug dealers ordinarily posses: high-priced scales, packaging, labels, business registers, large amounts of cash is usually necessary before such an accusation can lead to a conviction.

With the non-criminalization of marijuana in Massachusetts, the Massachusetts Supreme Judicial Court (SJC) has made even more difficult to accuse, and to convict, a person of possession of a Class D substance with intent to distribute.” Comm. v. Ilya I., 470 Mass. 625, 628 (2015).  The SJC recognized that the police may now be inclined to accuse people of intent to distribute in cases where simple possession is no longer a crime.  The SJC also recognized that the public no longer sees marijuana as a dangerous or serious drug.  Therefore, our courts now require very strong evidence of intent to distribute before charging you with this offense in a Massachusetts marijuana possession with intent to distribute.

Social Sharing of a Controlled Substance

Massachusetts' courts of appeal have also held that a person does not "intend to distribute," and does not actually distribute a drug, simply because that person is sharing the drug with friends.  Comm. v. Jackson, 464 Mass. 758 (2013).  "Social sharing" of a drug is not distribution or drug-dealing under the law.

Illegal Search and Seizure

Any responsible Massachusetts criminal defense lawyer examines how the police searched and recovered the alleged controlled substance. We examine Massachusetts search and seizure law here. The police are not permitted to search you, search your car, your house or apartment, or even your hotel room without "probable cause."  In Massachusetts, you have an absolute right to refuse to "consent to," or permit, the police from entering or searching property or your body without a warrant, except in very limited circumstances. You also have an absolute right to refuse to answer police questions and to have a lawyer help you.

When the police violate these sacred rights, evidence of the controlled substance is excluded or "thrown out" in a Massachusetts drug prosecution. Without the evidence, the case must be dismissed.

Contact our Massachusetts criminal defense lawyer to discuss your Massachusetts drug case.