CR 5-602: Possession with Intent to Distribute

Possession with intent to distribute (PWID) under CR 5-602 has likely led to more jail sentences than any other non-violent crime in Maryland. It has also been the reason for thousands of defendants becoming convicted felons and having limited employment opportunities. The good news is that the sentencing guidelines now call for lower recommended sentences upon conviction, and in some cases the offense is now classified as a misdemeanor. To sustain a conviction for PWID the State is required to prove that the defendant possessed a controlled substance such as cannabis, cocaine, MDMA, fentanyl or heroin, and that he or she possessed it with the intent to distribute some or all of it. The term distribute means to transfer, sell, exchange or even give away the substance. There is no minimum amount under this law and hypothetically a defendant could be charged for giving away a small personal use amount or selling it for a few bucks. Quantity of CDS recovered is a factor that the jury will be instructed to consider, but the State does not have to introduce evidence of a specific amount of drugs.
Prior to the legalization of marijuana for personal use the police would frequently conduct probable cause searches base on the smell of cannabis with the sole purpose of finding other types of CDS or guns. Since legalization and the mandatory use of body cameras police have less ability to create their own probable cause for a search, and thus CDS seizures in cares have become less common. K9 searches are still very much legal and commonly used by MSP and other law enforcement agencies patrolling major highways such as I95 and both beltways. Police still make numerous PWID arrests based on K9 searches, but there are limited drug sniffing dogs available, so traffic stop CDS seizures are less common. Search warrants and searches incident to arrest continue to be the most common cause of a PWID arrest, with the search warrant executions typically producing the more serious cases. Anyone arrested with multiple packages of “white powdery substance”, gel caps and small baggies of marijuana will likely be charged with PWID under 5-602.
There are numerous related CDS offense to PWID. These include selling possessing with intent to distribute counterfeit CDS under CR 5-604. Distributing counterfeit CDS is a felony with a 5-year maximum penalty. Importation is another common related offense and out-of-state residents coming into Maryland who are charged with PWID often face importation charges as well. Under CR 5-614 importation is a felony with a 25-year maximum penalty, while importation of cannabis less than 45 kilograms but more than 5 kilograms is a felony with a 10-year maximum penalty. Importing more than 45 kilos of marijuana carries the same 25-year penalty as narcotics importation. Drug possession used to be one of the most common offenses in the entire criminal code, but now that cannabis has become legal for recreational use the number of CDS possession cases has dropped significantly. Possession not marijuana under 5-601 is now the most common CDS charge, but only because it almost always accompanies PWID charges. Unlawful cannabis cultivation under 5-601.2 and manufacturing are other relatively common offenses, as is possession of marijuana over the civil possession amount of 2.5 ounces. Possession large amount per 5-612 and drug kingpin under 5-613 are the drug trafficking charges that carry mandatory prison sentences upon conviction.
There are numerous defenses in CDS PWID cases that an experienced criminal defense lawyer can argue including that the defendant never possessed the drugs and never intended to distribute the drugs. The State will often use the theory of constructive possession to try to convict multiple people of possessing the same CDS, but the jury will ultimately decide if the evidence is sufficient. Police often discovery CDS by overstepping the boundaries of the 4th Amendment, and a good CDS lawyer may be able to earn a dismissal by filing and arguing a motion to suppress physical evidence.
Possession with intent to distribute a narcotic such as cocaine, heroin or fentanyl carries up to 20 years in prison upon conviction. While the sentencing guidelines have reduced the recommended sentences dramatically, defendants in some jurisdictions still face lengthy jail sentences if convicted. PWID marijuana is now a misdemeanor with a 3-year maximum penalty and possession with intent to distribute meth, MDMA, Valium and Xanax is a felony with a 5-year maximum penalty.
Benjamin Herbst has successfully defended hundreds of clients charged with felony drug distribution and possession with intent to distribute in Maryland. He has also earned acquittals and dismissals in numerous cannabis cases including manufacturing and PWID. Contact Benjamin anytime at 410-207-2598 to discuss your Maryland drug charge.