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Sales VS Possession
You can be charged with drug sales in two scenarios under Kansas law .
- Obviously, for selling drugs. “Distribution of controlled substance” or
- based on the quantity of drugs possessed. “Possession with intent to distribute.”
Distribution is any transfer. So, it doesn’t matter if you sold the drugs for profit, sold drugs to break even, or just gave them away.
If you simply possess a certain amount of drugs, you’re “presumed to be selling.” The amount of drugs required to trigger this presumption vary for each drug:
- Cocaine over 3.5g
- Methamphetamine over 1g
- Heroin over 1g
- Marijuana over 25g ( .88 Oz.)
- Marijuana over 4 plants is presumptive cultivation
- “Pills” over 10 “dosage units”
Note: these are the minimal amounts for “presumptive distribution.” Penalties increase as amounts increase.
Drug Charges Defense
In any criminal case, you have two types of defenses: legal defenses and factual defenses.
In a drug case, common legal defenses are:
In a drug case, common factual defense are:
- Not my drugs.
- If charged with sales, personal use.
In Kansas, your first two possession of marijuana charges (under 25g) are misdemeanors, each more serious than the last.
Your third possession charge is a felony. The maximum penalty for felony Marijuana Possession is 42 months in prison.
Kansas Marijuana Distribution or Possession with Intent to Distribute.
In Kansas, Marijuana Distribution or Possession with Intent to Distribute is charged based on the quantity possessed:
- 25 grams or less is a level 4 felony
- 25 grams to 450 grams is a level 3 felony
- 450 grams to 30 kilograms is a level 2 felony
- 30 kilograms or more is a level 1 felony
Your presumptive sentence will be based on the the sentencing grid, which combines your criminal history with the offense level.
Will I go to prison for drug charges?
If you’re facing a felony, your presumptive sentence will be based on the sentencing grid which combines
- Your criminal history, and
- The level of the offense.
On a felony sentence you’re going to fall into one of three categories: Presumptive probation, Presumptive prison, or Border box (no presumption either way).
Generally, low criminal history with a possession charge amount to presumptive probation.
If you have a higher criminal record and/or a large amount of drugs, you're likely facing a presumptive prison sentence.
How to avoid prison for drug charges
If you fall into a presumptive prison category it’s still possible to receive probation.
There’s basically two ways to avoid prison,
- a plea deal where the prosecutor agrees to reduce the charge to presumptive probation, or agrees to a “departure,” or
- to ask the Judge for a departure at sentencing.
In a “dispositional departure,” we make arguments to the Judge to depart to a probation sentence.
In a “durational departure,” we argue for a reduced prison term.
federal Drug Crimes
Any federal criminal charge is a serious matter, but a federal drug crime is often a high-level felony offense, which may result in a significant term of imprisonment. Many federal drug crimes carry mandatory prison sentences.
Vincent Rivera defends clients against all federal drug charges in Kansas including:
- Drug trafficking (trafficking of narcotics and other controlled substances)
- Drug possession
- Drug possession with intent to sell
- Possession of pre-cursor chemicals (i.e., meth)
- Drug smuggling
- Conspiracy to possess with intent to distribute
- Drug manufacturing
- Drug distribution
- Drug importation or exportation
- Sale of controlled substances
Federal Drug Crime Defense Strategy.
Federal drug crimes are some of the most common federal charges in Kansas. With I-70 running east to west and I-35 north to south drug trafficking is one of the more common federal crimes in Kansas. If you passed state lines while carrying drugs, you may also have triggered a federal charge. Transportation, sale, distribution or manufacture of large quantities of drugs are common federal drug charges.
As with any other drug charge, there are a number of defenses and effective defense strategies that may be utilized in a federal drug case, including:
- Use of pretrial motions to seek the suppression of evidence obtained as a result of an illegal search
- Use of pretrial motions to seek the suppression of evidence obtained as a result of a search performed pursuant to a search warrant that was not supported by probable cause.
- Fighting charges at trial if the prosecution does not have sufficient evidence to prove all necessary elements of a drug crime beyond a reasonable doubt.
- Negotiation of a favorable plea agreement that minimizes a defendant’s exposure to potentially harsh penalties normally associated with the conviction of a federal drug charge.