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How Does Prosecution Choose Trafficking v Possession?

Trafficking of a controlled substance versus possession of the same substance can make a significant difference in the outcome of a case as well as the amount of time that a defendant may be looking at if sentence is imposed. There are some simple rules that can be applied, however there are exceptions.  Possession is a lesser charge, often a class D felony in Kentucky and may be resolved with deferred prosecution, diversion or probation, often including treatment.  Trafficking is generally a class C felony in Kentucky and nearly always results in a period of incarceration if convicted.  This can very greatly from state to state as well as in the federal level. (Note: Feds rarely concern themselves with possession cases) Generally if there is a relatively small amount of the controlled substance and it is not individually packaged for resale, the charge will be that of possession.  A number of factors may be considered both by the charging agency (police, Drug Strike force, FBI, DEA) such as: number of units, packaging, cash found on the defendant or in the residence/car, scales, division of drugs.  Also often considered but not evidence is the "word on the street."  If the agency obtains a warrant due to believed drug sales they will often charge with trafficking even though the evidence really leads to be a possession-type case. By way of examaple, assume that someone is found with 2g of heroin.  This is on the high side for what many consider to be "individual use."  If it is found near $2,500 cash and it is packaged in 4-10 separate dosage units and a digital scale is nearby, the likelihood is that the defendant will be charged with trafficking. However, if the 2g is in one unit, there is no money or scales and only a needle nearby and the defendant is a significant user, it may be more likely that he will be charged with possession. 218A.010(49) defines "Traffic" as: except as provided in KRS 218A.1431, means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance.  Of course, if there is evidence of actual trafficking, the charge will be trafficking regardless of the other factors.  For example, if a defendant has sold narcotics to an undercover agent or a confidential informant, they will generally be charged with trafficking regardless of the amount sold. If you have been charged with possession or trafficking, you are facing serious criminal charges and need to hire an experienced criminal defense attorney.  For a consultation in Northern Kentucky or Cincinnati, contact the Bouldin Law Firm and schedule an appointment.  Call Michael Bouldin at 859-581-6453 (581-MIKE) or email at [email protected].

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