Interviewer: How serious is the charge? Is it a misdemeanor or a felony? What’s involved if you are charged with it?
The Quantity of the Drug Most Often Determines the Level of the Charge
Court Koehler: With the controlled substances, it depends usually on what sort of quantity you have. If you have a small amount, just a personal use amount so to speak, it would be usually a class D misdemeanor. If you have more, you could end up with a felony charge. If you have enough that they think that they can prove that you were intending to distribute it, you will be charged with possession with intent to distribute all the way up to a second degree felony. It’s still a class D misdemeanor to a second degree felony.
What Amount of a Drug Constitutes Personal Use?
Interviewer: What constitutes personal use? I imagine if you don’t have a prescription for it, how do you know if it is personal use or not?
The Prosecutor Will Charge You with the Highest Possible Crime Level
Court Koehler: It can be somewhat unclear. This is because some people might be carrying around quite a bit and intend to use it all themselves but it could be enough to technically sell it. What comes down to impracticality is the prosecutor is generally going to charge you with the highest level of crime that they can possibly reasonably charge you with.
If you have a dozen OxyContin and they think that under the circumstances that they can prove that you were getting ready to sell it, possibly you had it in your pocket and you were headed someplace where drug deals typically occur. They might think that they have enough facts under the circumstances to prove to a judge or a jury that you were going to distribute it and they are going to charge you with it. If it is anything more than one or two really you might run the risk of getting that sort of intent to distribute charge.
That being said, you know, many times the original charge will be negotiated down so the charge will start up higher and then maybe the defense attorney and the prosecutor can kind of hash out a negotiation between the two to reduce the charges.
Reducing the Charges: Your Attorney Will Negotiate with the Prosecutor
Part of my job is to reign in an overzealous DA to ensure that the charges are reasonable. If you had ten pills and if you weren’t intending to distribute them, we might well be able to get the charge reduced from a felony down to where it should be, just a misdemeanor level.
It’s similar to the classic speeding joke that everybody makes, where the officer pull you over and then they add five miles an hour to how fast you were going so that they can take it off later, saying, “I’m going to get you for speeding. You were going 75 but I’m just going to write it for 70”. Everybody laughs and says, “I was doing 75 but I was going 70.”
They are always going to charge you with the most that they can. That’s their duty as a prosecutor.