RSMo 579.020 says a person commits the offense of delivery of a controlled substance if, except as authorized in this chapter (579) or chapter 195, he or she:
- Knowingly distributes or delivers a controlled substance
- Attempts to distribute or deliver a controlled substance
- Knowingly possesses a controlled substance with the intent to distribute or deliver any amount of a controlled substance or
- Knowingly permits a minor to purchase or transport illegally obtained controlled substances
“Except as authorized” refers to common sense exemptions such as a medical professional dispensing drugs or a law enforcement agent conducting sting operations. The definitions for the terms distribute, deliver and controlled substance are given in RSMo 195.010.
Knowingly Distributes or Delivers
Delivery is defined as the actual, constructive or attempted transfer from one person to another. Note that this definition does not limit delivery to just a sale. Any transfer can be charged as delivery, and the state does not have to prove that a sale took place. Also, constructive and attempted transfers count. Constructive transfers occur when the defendant does not personally hand over the drugs, such as when they use a runner or a go-between to make the exchange. Attempted transfers are rare but can occur when law enforcement intercepts drugs that have been mailed.
Knowledge is an element of the offense of delivery of a controlled substance. Theoretically, the state must prove that the defendant knew they were delivering drugs, and they can do this with circumstantial evidence. In reality, if you find yourself in a bizarre situation where you have been arrested for selling drugs and you really didn't know you were doing it or didn't know they were drugs, it would be your responsibility (or more likely your defense attorney's) to convince a prosecutor of your mistake.
Delivery of a controlled substance, other than 35 grams or less of marijuana, is a class C felony unless the delivery is to someone under 17 who is at least 2 years younger than the defendant, in which case it is a class B felony. Delivery of 35 grams or less of marijuana is a class E felony unless the delivery is to someone under 17 who is at least 2 years younger than the defendant, in which case it is a class C felony.
Distributing, delivering or selling a controlled substance (other than 35 grams or less of marijuana) in a protected location is a class A felony. A protected location means within 2000 feet of a school or school bus, within 1000 feet of a park or in public housing. To get a conviction under the protected location statute the state must not only prove that a person knowingly delivered a controlled substance, but that they knew they were within the specified distance to the protected location when they did it. The latter can be difficult to prove.
It is easy enough, using maps or measuring devices, to prove that a delivery took place in the protected location, but proving that the defendant was aware he or she was in a protected location is another matter. In State v. White 28 S.W. 3d 391 an appellate court overturned the protected location enhancement in a case where the defendant made multiple sales of crack cocaine and marijuana to an undercover officer within 2000 feet of two schools. The state did not present evidence that the defendant knew of the presence of the schools, only that they were there. The court held that to get a conviction the state would have needed to show that the schools were large enough and situated in such a way that the defendant would have reasonably been assumed to know of their presence.
The protected location statute in effect changes a delivery of a controlled substance charge from a class C to a class A felony. The difference between the two is substantial, possibly resulting in an increase of a decade or more in sentencing. If you have been charged with distribution in a protected location under Missouri law it is absolutely vital that you hire a criminal defense attorney who can fight to get the charge dismissed.
Possession with Intent to Distribute
Possession with intent to distribute is most often charged when a person is found with large quantities of a drug packaged in a way indicating that they plan to sell it. Any intention to share a drug with at least one other person counts, so a plan to sell the drug is not always a necessary component of the crime. In addition to proving the normal elements of possession of a controlled substance, the state must also prove specific intent to distribute the drugs. This is normally done with circumstantial evidence. This evidence includes the drugs being separated into numerous small packages and the presence of scales, baggies or a large amount of cash.
Intent to distribute can be shown based on the amount of the drug present, but the courts have not said what those specific amounts are. They have gone by the general rule that an amount that a reasonable person would conclude is too much for personal use is sufficient to indicate an intent to distribute. Thus we see in State v Belton 108 S.W. 3d 171 that 2 pounds of marijuana is a sufficient amount for an intent to distribute charge in Missouri, but in State v McCleod 186 S.W. 3d 439 7.5 ounces of marijuana in and of itself was not a sufficient amount. Interestingly, cases in other states have held that 2 pounds and 1 and ⅔ pounds were not enough to prove an intent to distribute.
Possession with intent to distribute carries the same penalties as distribution or delivery, meaning that it is usually a class C felony. Possession of a controlled substance is a class D felony. This carries substantially less penalties. If you have a possession with intent to distribute charge, it is important to hire an experienced criminal defense lawyer who can contest the case on your behalf.