Is Using Drugs a Different Charge Than Selling?

Drug laws in Florida and throughout the U.S. continue to be harsh. Although drug laws affecting people who use drugs are beginning to place greater emphasis on treatment than in past years, those who sell or distribute drugs will continue to face severe penalties. 


Drug use in the U.S. has been a complicated subject for decades. When the “War on Drugs” became a popular movement in 1971, President Richard Nixon called drug abuse “public enemy number one.” But since that time, we’ve learned that what was once called “drug abuse” is an illness now referred to as “substance use disorder,” or SUD.  


At Stechschulte Nell, Attorneys at Law, in Tampa, we have earned our reputation for high-quality criminal defense services in cases involving the possession or distribution of controlled substances in both state and federal court. If you are facing drug charges in Hillsborough County or Pinellas County, our experienced drug defense lawyers are ready to provide you with the professional and effective criminal defense you need. 



Big Difference Between Drug Possession and Drug Sale, Distribution, or Trafficking 


Both state and federal law distinguishes between possessing drugs and distributing them. Possession is viewed in law as an unlawful but self-harming offense.  


Selling, distributing, or trafficking controlled substances is perceived as a commercial enterprise in which dealers care little about anything but profit, despite the negative societal consequences.  


That different view means that drug sales and distribution penalties are designed to be severe enough to deter others from becoming engaged in the “business of drugs.” 


A Word About Intent to Possess Drugs vs. Possession with Intent to Sell or Distribute: 


Criminal law prohibits the knowing and intentional possession of a controlled substance, except small amounts of medical marijuana or drugs prescribed legally by an authorized healthcare provider. If you possess drugs with only the intent to use them, then the act is simple possession. Whether the offense is a misdemeanor or a felony depends on the type and the weight of the drugs involved. 


However, if you possess controlled substances with the intent to sell, distribute, or traffic in them, then the crime is a felony. Again, the potential penalty you would face for this offense depends on the nature and weight of the drugs involved. 


But how can the government prosecutors prove what a defendant intended? 


Intent can be proven in a court of law through several methods. The evidence can consist of the defendant’s own statements, evidence from a “controlled buy” in which an undercover agent purchases drugs from the defendant, or in the form of “circumstantial evidence.” 


Prosecutors can use “circumstantial evidence” to prove that a defendant had the intent to sell or distribute drugs found in the possession.  


Here are some facts that can help to convict a defendant of possession with intent to distribute drugs using circumstantial evidence: 


  • Possession of a large number of drugs (more than could reasonably be for personal use), 
  • Ledgers recording sales, debt owed, quantities purchased or sold, 
  • Digital scales, packaging materials, cutting agents,  
  • Large quantities of cash 


Experienced criminal defense lawyers who handle many drug cases are especially skilled at defeating prosecution attempts to paint every colorable fact as an indication of drug dealing. Packaging materials used by people who sell drugs are also found in the average homeowner’s kitchen. Digital scales may have been uncommon at one time, but they are now fixtures in an average kitchen.  


When a defendant is facing any kind of drug crime charge, the criminal defense lawyer they hire must be prepared to challenge the unsupported assumptions made by police and prosecutors. Your lawyer is your advocate, the only one you have in the criminal justice process.  


Using Drugs v. Selling Drugs 


Governments in the U.S. have spent billions of dollars and decades of law enforcement hours trying to reduce or eliminate illegal drugs from society. For many years, before the neurochemistry of dependency was understood, courts routinely incarcerated drug users who continued to possess small amounts of drugs after being placed on probation for an earlier offense. The court system wrongly perceived the repeated use of drugs simple contempt for the law.  


Now we understand that substance use disorder creates a compulsion in the user’s brain that drives a strong craving to use. No amount of jail will cure the disorder, nor is it just to incarcerate people due to their illness. 


But the law still carries criminal penalties for possession:  


Simple possession of any schedule I or II common drug, cocaine, heroin, methamphetamine, ecstasy, or over 20 grams of cannabis is punishable by up to 5 years in prison. 


Selling, Distributing, Trafficking, or Possessing Drugs with Intent to Engage in These Activities 


Where laws against using drugs are becoming a bit more compassionate, the Florida legislature is raising the penalties for defendants convicted of any form of selling or trafficking drugs.  


Penalties for selling, distributing, trafficking, or possessing with intent to do so are much higher than simple possession penalties. 


Selling or Possession with intent to sell any schedule I or II drugs in Florida is a second-degree felony punishable by up to 15 years in prison and a $10,000 fine. 


Possession of large amounts of some drugs, or possessing any near a school, a church, or other specified locations, is a first-degree felony carrying a penalty of up to 30 years in prison and a $10,000 fine. The law views the large amount as an indication that the drugs are intended for sale. To make convicting a defendant easier, only the weight of the drug needs to be proven to convict someone, not proof of their intent. 


Fentanyl is now a high priority because of its extraordinary potency and danger to users. Under a new statute signed into law in 2022, any person convicted of trafficking as few as 4 to 14 grams of fentanyl must receive a minimum mandatory sentence of 7 years and up to 30 years, plus a $50,000 fine.  Trafficking between 14 and 28 grams of fentanyl now carries a mandatory minimum of 20 years and a $100,000 fine. When a mixture containing fentanyl weighs more than 28 grams (about 1 ounce), the judge must now impose a minimum prison sentence of at least 25 years. 


Learn More > Drug Trafficking Isn’t Always What it Sounds Like 


Charged with Possession, Selling, Distributing, or Trafficking Drugs in Florida? 


If you or someone you love has been charged with a drug-related crime in the state of Florida, call our experienced criminal defense law firm for a case review at 813-280-1244. We are ready to defend your case.  

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