A charge for illegal possession of a controlled substance oftentimes relates to another crime. It might come with a charge of “illegal manufacture, distribution, sale, prescription, dispensing”. Selling an illegal substance is the most common reason for the charge being brought. But all methods of transferring an illegal substance from one person to another face prosecution under the same offense.
The basic statutory definitions of these terms, as laid out in Conn. Gen. Stat. § 21a-240 are as follows:
Manufacture means the production, preparation, cultivation, growing, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging or labeling of a controlled substance:
(A) By a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice, or (B) by a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale;
Distribute means to deliver other than by administering or dispensing a controlled substance.
Sale is any form of delivery. This includes barter, exchange or gift, or offer therefor. Also, each such transaction made by any person whether as principal, proprietor, agent, servant or employee constitutes sale.
Prescription means a written, oral or electronic order for any controlled substance. Also, it means the of the preparation for the order from a licensed practitioner to a pharmacist for a patient.
Dispense means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare the substance for the delivery.
A charge under one of these statutes can stem from a police officer actually witnessing the illegal transfer of contraband. Also, they come from tips from a confidential informant. A person does not need to get caught red handed to face a sale charge. In addition, the sale or manufacturing of a controlled substance means a serious charge. Even taking a step toward its commission it is a crime. As a result, defendants often face charges for “possession of a controlled substance with intent to sell”. This carries the same penalties.
*The penalties for violating these statutes vary according to amount and type of drugs possessed; see the penalty charts in Chapter 1 (Drugs) for a complete listing.*
Where the state charges the defendant with possession with intent to sell, the defendant’s intent, as in possession cases, may get inferred from circumstantial evidence. Intent to sell (or manufacture, distribute, etc.) may get inferred from evidence such as: excessive amounts of drugs on in a defendant’s possession; evidence that the defendant does not use drugs; guns or other weapons found with the drugs. State v. Avila, 166 Conn. 569 (1974).
Other circumstantial evidence bearing on the question of the intent to sell is the absence of any drug paraphernalia indicating personal use, the packaging of the drugs consistent with sales, and the defendant’s interaction with other persons at the time of the possession. State v. Conley, 31 Conn. App. 548 (1993). Courts have recognized that certain drugs get packaged in specific ways, such as cocaine often getting packaged in small plastic baggies. As a result, the possession of a large amount of baggies can be evidence of the intent to sell. State v. Delossantos, 211 Conn. 258 (1989). Drug paraphernalia is defined by C.G.S.A. § 21a-240(20). Factors considered by the court in determining whether an object constitutes drug paraphernalia come from C.G.S.A. § 21a-270.
Although large amounts of a drug can constitute strong evidence of intent, the amount of drugs involved in any particular case by itself does not give an indication of whether the individual has the intent to sell. Consequently, the fact that the individual was found with only a small quantity of the drug will not preclude a finding of an intent to sell if there is other strong evidence indicating such an intent. The other factors include whether the manner of packaging of the confiscated drug is consistent with selling, the fact that the defendant maintained multiple addresses, or the individual’s behavior characteristic of drug dealers. State v. Whittingham, 18 Conn. App. 406 (1989).
Sale/Attempted Sale of Controlled Substance
Conn. Gen. Stat. § 21a-278(a), sets up three elements, all of which must be established beyond a reasonable doubt in order to justify a finding of guilty:
Sale or Attempted Sale of a Controlled Substance – Elements
The defendant had possession of a substance;
The substance was a narcotic substance; and
He sold it, or possessed it with the intent to sell it.
The first element is that the defendant had possession of a substance. This element of possession means that the defendant knew of the narcotic character of the substance, that he knew of its presence, and that he exercised dominion and control over it. It is not necessary, however, that the defendant actually had the substance on his person, although that is one form of possession. It also means having dominion and control over the substance, even though it is not on the defendant’s person.
The second element is that the substance which the defendant possessed was a narcotic substance. The amount of the narcotic substance is immaterial. Any amount, however slight, is sufficient.
The third element of this offense is that the defendant possessed the narcotic substance with the intent to sell it. The word “sell” is not confined to a delivery of narcotics, which is paid for by someone else. Under Connecticut statute § 21a-240(50), a sale is any form of delivery, including barter, which is a trade of one thing for another and a gift of the narcotic substance, which does not require that the defendant received or expected to receive anything in payment or exchange for it.
A “delivery” of a narcotic substance, insofar as that word applies here, means an actual or an attempted transfer from one person to another. The statutory definition of “sale”, includes “each such transaction made by any person whether as principal, agent, servant or employee.” So long as the defendant intended the sale to be carried out by one of his agents, servants or employees, the defendant will be legally responsible for the sale. Also, the element of delivery is satisfied even if the act or intent to act is carried out by someone else who is acting for him and under his control.
Quantity of Controlled Substance
Finally, the method of determining how much, or what quantity, of a controlled substance a defendant possesses with the intent to sell under these sections is anything but an exact science. For example, under C.G.S.A. § 21a-278(a), it is a specific offense to sell or possess with the intent to sell a compound or substance “containing an aggregate weight of one ounce or more” of certain controlled substances.
It has not yet been decided whether this means whether (1) the state must prove that the compound or substance contains one ounce or more of the controlled substance in its pure form, or (2) the compound or substance containing the controlled substance must weigh one ounce or more. Also, the Supreme Court found it unnecessary to decide the question in the case in which it was raised, because the unchallenged evidence indicated that the compound or substance contained more than one ounce of pure cocaine. State v. Delossantos, 211 Conn. 258 (1989).