Defining Possession, Manufacture, Use and Distribution of Drugs

The federal Controlled Substances Act ICSA) makes the possession or distribution of certain substances illegal. This does not include substances that are allowed to be used at the direction of a licensed physician. Some other uses are also authorized by the CSA or other provisions of federal law.

The Controlled Substances Act (CSA) places all substances that are regulated in some way by current federal law into one of five schedules. The schedule on which a substance is placed depends upon whether it has legitimate medical uses, its potential for abuse, and whether it is safe or presents a risk of dependence or abuse.

Most states have adopted the federal drug schedules as their own. However, several states have exempted certain substances that are on the federal schedules from their own state schedules. For example, many states no longer treat marijuana or cannabis as a Schedule 1 controlled substance. Marijuana and cannabinoids are now legal even for mere recreational use in more than 21 states. These substances are legal for medical use in a majority of states.

What Does It Mean to Possess an Illegal Substance?

State and federal laws associated with illegal substances may vary. However, a person generally has possession of an illegal substance when that person knows of its presence in a place over which the person has physical control. A person also has possession of an illegal substance, such as a narcotic, if that person has the power and intention to control it.

Criminal possession is defined as the holding of property that it is illegal to possess. Basically, there are two kinds of possession:

• Actual Possession: Generally speaking, a person has actual possession of an illegal substance when it is physically on their person;
• Constructive Possession: Alternatively, it is possible for a person to be in possession of an illegal substance, even when it is not on their physical person. A person can be in constructive possession of an illegal substance that they do not have on their person.
  • A person who has knowledge of the substance and as well as the ability to control it has constructive possession. For example, if a person owns a car and a controlled substance is found in the glove compartment when the person is in the car, they are in constructive possession of the substance.

What Does It Mean to “Manufacture” a Drug?

The manufacture of any controlled substance is strictly prohibited unless state or federal authorities have licensed a person or entity for that activity. Drug manufacturing laws are most often violated by people who grow marijuana or make methamphetamine. However, the prohibition of manufacturing applies to any situation where a controlled substance is involved.

A person is generally considered to be guilty of manufacturing a controlled substance when they produce an illegal substance by means of a chemical process or a natural extraction. Manufacturing drugs can also include packaging or repacking the substance, as well as labeling and relabeling a container in which the substance is placed. Usually, this is not done by a single person who is acting alone. But it can be.

The punishment meted out as a manufacturing drug charge sentence may include a lengthy prison term and/or payment of a large fine. This would be true for either state or federal convictions.

Drug manufacturing is usually charged as a felony. However, it may be charged as a misdemeanor offense on some occasions, e.g., when a person is convicted of possessing substances used to manufacture prescription drugs rather than controlled substances.

Generally, however, because there are often a number of people involved in the manufacturing process, anyone who is involved but was not physically manufacturing the drugs at the time that they were arrested may be charged with conspiracy. Drug conspiracy is further discussed below.

What Does It Mean to “Use” Drugs?

State laws vary considerably regarding the meaning of “use” in drug-related crimes. This generally entails using an illegal controlled substance that was not prescribed by a licensed physician. Use involves ingesting the substance, swallowing it, smoking it, injecting it, or otherwise taking it into one’s body in the way that is appropriate for the substance involved.

A person is generally considered to be guilty of “distribution” when they transfer a controlled substance to another person in any manner. The transfer can be:

• Actual: A transfer is said to be “actual” when a person physically transfers the controlled substance to another person;
• Constructive: The law permits the government to prove that a person intends to sell or distribute an illegal substance through their actions. Alternatively, this can be proven by the quantity of drugs in their possession. An example of this would be how evidence of a large quantity of drugs packaged in small bundles may imply that a person’s drugs are “packaged to sell” rather than for personal use.
  • Here, the intent to distribute can be inferred without any evidence of actual distribution;
• Attempt: A transfer is “attempted” when the person attempts to transfer the controlled substance to another person but is otherwise prevented from doing so.

Distribution can carry the harshest penalties of all drug crimes because it involves enabling the drug use of others as well as the perpetuation of drug problems plaguing society. So, manufacturing and distribution charges would not be dealt with in the same manner.

What Is a Drug Conspiracy?

A drug conspiracy would be two or more people who conspire together to commit a criminal act involving drugs. The criminal act can include one or more of the following:

• Drug Trafficking: Also known as drug distribution, this involves the sale, transportation, and import of illegal drugs and controlled substances. Drug trafficking and drug dealing are not the same thing. However, they are very similar to each other.
  • Because drug trafficking also involves the manufacture, transportation, and import of illegal drugs, a person does not have to be caught selling the substances in order to face trafficking charges if they are also involved in other related activities.
    • Knowingly possessing the drugs is generally sufficient to support a drug trafficking charge;
• Drug Manufacturing: While drug manufacturing laws vary by state, a person is generally considered to be guilty of manufacturing a drug when they produce an illegal substance, either through chemical synthesis or natural extraction. This can also include packaging or repacking of the substance, as well as labeling and relabeling the drug’s container.
  • Because there are multiple people involved in the drug manufacturing process, anyone who is involved but was not physically manufacturing the drugs at the time of arrest may be charged with conspiracy, as was previously discussed;
• Drug Selling: Generally speaking, a person can be accused of drug selling when they transfer a controlled substance to another person.

An example of how a drug conspiracy works would be how one person can make the drug while another person is responsible for transporting the drug from the manufacturing site to a third person who handles sales of the drug.

The type of drug involved generally does not make any difference in a drug conspiracy case. This is because drug conspiracy involves anyone who knowingly helps to facilitate or further any controlled substance or narcotic through sale, distribution, or trafficking.

What Can You Do if You Are Accused of a Drug Crime?

If you have been charged with any kind of drug crime, you need to consult a drug lawyer.

LegalMatch.com can connect you to an experienced local drug attorney who can help you understand your state’s specific laws that govern drug crimes and what your legal rights and options are under those laws. Additionally, an attorney will also be able to represent you in court as needed.