What’s the difference between possession, possession with intent to deliver, and manufacture/delivery of a controlled substance?
Possession of a controlled substance is illegal in Wisconsin. But what happens when you possess a lot of that substance? What happens when you possess that substance, but it’s broken up into small bags? Or you have a lot of money with you in addition to the substance? Often, those cases are charged as something called possession with intent to deliver (or, more formally, possession of a controlled substance with intent to deliver). If the defendant moves past possession with intent and actually delivers the substance, the criminal charge is for delivery of a controlled substance. All of these crimes are serious, but sometimes the differences are confusing. Below, Attorney Ben Van Severen breaks down different drug crimes in Wisconsin:
Possession of a controlled substance – what is possession?
Section 961.41(3g) of the Wisconsin Statutes prohibits possession of a controlled substance. Possession of a controlled substance is exactly like it sounds: the defendant possessed the substance. This is the drug crime charged when individuals have a small amount of marijuana, cocaine, heroin, methamphetamine, or any other drug in his possession.
Possession can be shown a few different ways:
- Actual possession: Means the defendant knowingly had physical control over an item; or
- Constructive possession: Means the defendant has possession if the item is found within an area over which the person has control, and the person intends to exercise control over the time.
Importantly, possession can be shared with another person. At consultations I explain this to clients very simply: There is a pen sitting on my desk between us. It’s my pen. I bought the pen. It isn’t your pen. However, we both have constructive possession of the same pen. Drug charges operate the same way.
What is possession of a controlled substance?
Possession of a controlled substance, no matter the substance, follows the same proof formula. That is, possession of marijuana uses the same jury instructions as possession of cocaine or possession of methamphetamine. What changes is simply the substance. So, in order to prove possession of marijuana, three things need to be satisfied:
- The defendant possessed a substance;
- The substance was marijuana. Marijuana is a controlled substance whose possession is prohibited by law; and
- The defendant knew or believed that the substance was marijuana. (WIS JI-Criminal 6030)
Possession of cocaine is proven by simply replacing cocaine with marijuana. This remains the same for all other controlled substances.
Penalties for possession of a controlled substance:
The big difference in possession charges focuses on the substance involved. That also determines the penalty level. Below, we’ve explained the penalties for possession of every drug in Wisconsin, pursuant to Wis. Stat. sec. 961.31(3g):
- Schedule I and II narcotic drugs (Wis. Stat. sec. 961.41(3g)(am)) – Class I felony. (3 years, six months prison, $10,000.00 fine pursuant to Wis. Stat. sec. 939.50(3)(i).)
- Cocaine and cocaine base (Wis. Stat. sec. 961.41(3g)(b)) –
- First offense possession of cocaine results in up to a $500.00 fine and a year in the county jail.
- Second or subsequent offense: Class I felony.
- Tetrahydrocannabinols (marijuana, THC) (Wis. Stat. sec. 961.41(3g)(e))
- First offense possession of marijuana results in up to a $1,000.00 fine and 6 months in the county jail.
- Second or subsequent offense: Class I felony.
- Methamphetamine (Wis. Stat. sec. 961.41(3g)(g)) – Class I felony.
- Gamma-hyroxybutyric acid, gama-butyrolactone (GHB) (Wis. Stat. sec. 961.41(3g)(f)) – Class H felony. (6 years prison, $10,000.00 fine pursuant to Wis Stat. sec. 939.50(3)(h).
- Synthetic cannabinoids (Wis. Stat. sec. 961.41(3g)(em))
- First offense possession of marijuana results in up to a $1,000.00 fine and 6 months in the county jail.
- Second or subsequent offense: Class I felony.
- Certain hallucinogenic and stimulant drugs (Wis. stat. sec. 961.41(3g)(d)) –
- First offense possession results in up to a $5,000.00 fine and a year in the county jail.
- Second or subsequent offense: Class I felony.
Second or subsequent offenses relate to any prior drug offense. If your first offense is cocaine, and you’re arrested for possession of marijuana, the marijuana case qualifies as a second or subsequent offense. It does not matter that the substance involved changed.
Another drug crime: Possession with intent to deliver
The next step up from simple possession is called possession with intent to deliver. Section 961.41(1m) of the Wisconsin Statutes prohibits “possession with intent to manufacture, distribute, or deliver.” One of the questions our criminal defense firm most often encounters is: what is intent to deliver? How did the cops know I was intending to deliver this substance?
The statute clarifies this answer. Intent may be demonstrated by:
- Evidence of the quantity and monetary value of the substances possessed; or
- The possession of manufacturing implements or paraphernalia; or
- The activities or statements of the person in possession of the controlled substance prior to and after the alleged violation.
Appellate courts have further defined what intent to deliver requires. In State v. Pinkard, 2005 WI App 226, 287 the Court of Appeals decided that simply holding drugs for another person, with the intent to return those drugs to the other person, satisfies the definition of the crime. “Whether Pinkard had delivered the drugs to the original owner for distribution to buyers, or to a third party for distribution to buyers, the ultimate conduct would have been the same: delivering drugs for use by others, a crime the legislature intended to punish under Wis. Stat. § 961.41(1m).”
What are the elements of the offense?
For the government to convict a defendant of possession of a controlled substance with intent to deliver, four elements must be proven beyond a reasonable doubt (WIS JI-Criminal 6035):
- The defendant possessed a substance. Possessed means that the defendant knowingly had actual physical control of the substance. It is not necessary that the quantity of the substance be substantial. Any amount is sufficient; and
- The substance was a controlled substance. A controlled substance is a substance whose possession is prohibited by law; and
- The defendant knew or believed that the substance was a controlled substance. (This elements does not require that the defendant knew the precise chemical or scientific name of the substance; and
- The defendant intended to deliver the controlled substance. “Deliver means to transfer or attempt to transfer from one person or another. “Intended to deliver” means the defendant had the purpose to deliver, or was aware that his conduct was practically certain to cause delivery.
Possession of a controlled substance with intent to manufacture has a slightly modified fourth element:
- The defendant intended to manufacture the controlled substance. “Intend to manufacture” means the defendant had the purpose to manufacture. “Manufacture” means to produce, propagate, compound, covert, or process a controlled substance. This includes packaging or repackaging of the substance, or labeling the substance. (WIS JI-Criminal 6036).
What are the penalties for possession of a controlled substance with intent to manufacture, distribute or deliver a controlled substance?
Penalties do not differ between intent to manufacture, intent to distribute, and intent to deliver cases. More importantly, the penalties differ based on the substance involved. The penalties are as follows:
Possession of marijuana (THC) with intent to manufacture, distribute, or deliver – prohibited in Wis. Stat. sec. 961.41(1m)(h)
- 200 grams or less, or 4 or fewer plants containing THC
- Penalty: Class I felony (up to a $10,000.00 fine and 3.5 years in prison)
- 200-1000 grams, or 4-20 plants containing THC
- Penalty: Class H felony (up to a $10,000.00 fine and 6 years in prison)
- 1,000-2,500 grams, or 20-50 plants containing THC
- Penalty: Class G felony (up to a $25,000.00 fine and 10 years in prison)
- 2,500-10,000 grams, or over 50 plants containing THC
- Penalty: Class F felony (up to $25,000.00 fine and 12.5 years in prison)
- Over 10,000 grams THC
- Penalty: Class E felony (up to $50,000.00 fine and 15 years in prison)
Possession of cocaine or cocaine base with intent to manufacture, distribute, or deliver – prohibited in Wis. Stat. sec. 961.41(1m)(cm)
- Under 1 gram cocaine
- Penalty: Class G felony (up to a $10,000.00 fine and 10 years in prison)
- 1-5 grams cocaine
- Penalty: Class F felony (up to $25,000.00 fine and 12.5 years in prison)
- 5-15 grams cocaine
- Penalty: Class E felony (up to $50,000.00 fine and 15 years in prison)
- 15-40 grams cocaine
- Penalty: Class D felony (up to $100,000.00 fine and 25 years in prison)
- Over 40 grams cocaine
- Penalty: Class C felony (up to $100,000.00 fine and 40 years in prison)
Possession of heroin with intent to manufacture, distribute, or deliver – prohibited in Wis. Stat. sec. 961.41(1m)(d)
- Under 3 grams heroin
- Penalty: Class F felony (up to $25,000.00 fine and 12.5 years in prison)
- 3-10 grams heroin
- Penalty: Class E felony (up to $50,000.00 fine and 15 years in prison)
- 10-50 grams heroin
- Penalty: Class D felony (up to $100,000.00 fine and 25 years in prison)
- Over 50 grams heroin
- Penalty: Class C felony (up to $100,000.00 fine and 25 years in prison)
Possession of methamphetamine with intent to manufacture, distribute, or deliver – prohibited in Wis. Stat. sec. 961.41(1m)(e) (also including phencyclidine, methcathinone, cathinone, N-benzylpiperazine
- 3 grams or less meth
- Penalty: Class F felony (up to $25,000.00 fine and 12.5 years in prison)
- 3-10 grams meth
- Penalty: Class E felony (up to $50,000.00 fine and 15 years in prison)
- 10-50 grams meth
- Penalty: Class D felony (up to $100,000.00 fine and 25 years in prison)
- Over 50 grams meth
- Penalty: Class C felony (up to $100,000.00 fine and 40 years in prison)
Other caselaw issues involving possession with intent to deliver, manufacture, or distribute a controlled substance:
In State v. Smallwood, 97 Wis.2d 673, 294 N.W.2d 51 (1980), the Court of Appeals of Wisconsin was tasked with determining the answer to an interesting question: can the defendant be charged with delivering a controlled substance if, in fact, he believes it’s a different controlled substance? The answer is yes. It does not matter that the defendant believed he was delivering another controlled substance. Concluding, the only thing that mattered was that the defendant did believe it was a controlled substance he was delivering. Although this case clearly involved a delivery, the knowledge element discussed here has been applied to possession with intent cases.
The knowledge requirement for possession of controlled substances was established by the Supreme Court of Wisconsin in State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801 (1973). The Court held that “[In cases involving possession of a controlled substance] … the prosecution must prove not only that the defendant is in possession of a dangerous drug but also that he knows or believes that he is.” In Lunde v. State, 85 Wis.2d 80, 270 N.W.2d 180 (1978) this was further clarified: knowledge of the precise chemical name of the controlled substance is not required for prosecution. What is required is that the defendant know the substance is a substance which is controlled by law.
Before we get to manufacture/delivery of a controlled substance: what is a schedule 1 drug? What is the drug scheduling system in Wisconsin?
Wisconsin’s drug scheduling system is a way of classifying drugs based on risk of abuse, medical value, and dangerousness. Schedule 1 substances are the most dangerous, while schedule 5 drugs are the least. The schedule is as follows:
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Schedule I drugs:
Drugs that have a high potential for abuse, have no currently accepted medical use or treatment in the United States, and lack accepted safety for use in treatment under medical supervision are included in schedule 1. Examples include:
- Fentanyl, fentanyl analogs, heroin, MDA (3,4-methylenedioxyamphetamine), MDE (3,4-methylenedioxyethylamphetamine), MDMA (3,4-methylenedioxymethamphetamine), DOET (4-ethyl-2,5-dimethoxyamphetamine), mescaline, LSD (lysergic acid diethylamide), PCP (phencyclidine), psilocybin, psilocin, salvinorin A, THC (marijuana), GHB (gamma-hydroxybutyric acid), synthetic cannabinoids, hallucinogenic substances, opiates, synthetic opiates, depressants, certain stimulants.
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Schedule II drugs:
Drugs that have a high potential for abuse, have some currently accepted treatment in the United States, and that can lead to severe psychological or physical dependence are included in schedule 2.
- Opium and substances derived from opium (opium, codeine, morphine, oxycodone), cocaine, ecgonine, synthetic opiates, stimulants (methamphetamine), depressants, immediate precursors, hallucinogenic substances.
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Schedule III drugs:
Drugs that have a potential for abuse (but lower than schedules 1 and 2), have accepted medical use in treatment in the United States, and have relatively low/moderate risk for physical dependence and high risk for psychological dependence are included in schedule 3.
- Codeine, ketamine, anabolic steroids, testosterone.
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Schedule IV drugs:
Drugs that have a low potential for abuse relative to substances in schedule III, that currently have accepted medical treatment in the United States, and which can, upon abuse, lead to limited physical or psychological dependence. These are the drugs included in schedule 4:
- Depressants (alprazolam (Xanax), barbital, carisoprodol (Soma), clonazepam, diazepam (Valium), ketazolam, lorazepam, loprazolam, prazepam, zolpidem (Ambien)), stimulants (ephedrine, modafinil), tramadol.
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Schedule V drugs:
Drugs that have a low potential for abuse, have accepted medical practice in the United States, and have a limited potential for psychological/physical dependence. Commonly recognized schedule 5 drugs include:
- Pseudoephedrine, codeine, dihydrocodeine, ethylmorphine, diphenoxylate, opium, difenoxin, ezogabine, pregabalin, brivaracetam.
Manufacture, distribution, or delivery of a controlled substance
Section 961.41(1) of the Wisconsin Statutes prohibits manufacturing, distributing, or delivering a controlled substance. This prohibition is very simple. Absent legal authorization, you cannot manufacture, deliver, or distribute a controlled substance or controlled substance analog. This offense, like all others has elements that would need to be proven beyond a reasonable doubt before a conviction:
- The defendant delivered, manufactured, or distributed a controlled substance; and
- The substance was a controlled substance whose delivery, manufacture, or distribution is prohibited by law; and
- The defendant knew or believed that the substance was a controlled substance.
As with other drug offenses, it is not required for the defendant to have understood the exact chemical name of the substance. If a fact-finder is convinced, beyond a reasonable doubt, that the street name used is for an actual controlled substance, the statute is satisfied.
What are the penalties?
As with possession with intent charges, the penalties for delivery, manufacturing, and distributing are based on the substance involved and the amount of said substance:
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Manufacture/deliver cocaine:
- Under one gram is a Class G felony (up to $25,000.00 in fines, 10 years in prison).
- 1-5 grams is a Class F felony (up to $25,000.00 in fines, 12.5 years in prison).
- 5-15 grams is a Class E felony (up to $50,000.00 in fines, 15 years in prison).
- 15-40 grams is a Class D felony (up to $100,000.00 in fines, 25 years in prison).
- Over 40 grams is a Class C felony (up to $100,000.00 in fines, 40 years in prison).
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Manufacture/deliver heroin:
- 3 grams or less is a Class F felony (up to $25,000.00 in fines, 12.5 years in prison).
- 3-10 grams is a Class E felony (up to $50,000.00 in fines, 15 years in prison).
- 10-50 grams is a Class D felony (up to $100,000.00 in fines, 25 years in prison).
- Over 50 grams is a Class C felony (up to $100,000.00 in fines, 40 years in prison).
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Manufacture/deliver methamphetatmine:
- 3 grams of less is a Class F felony (up to $25,000.00 in fines, 12.5 years in prison).
- 3-10 grams is a Class E felony (up to $50,000.00 in fines, 15 years in prison).
- 10-50 grams is a Class D felony (up to $100,000.00 in fines, 25 years in prison).
- Over 50 grams is a Class C felony (up to $100,000.00 in fines, 40 years in prison).
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Manufacture/deliver THC (tetrahydrocannabinols, marijuana)
- 200 grams or less is a Class I felony (up to $10,000.00 fine, 3.5 years in prison).
- 200-1,000 grams is a Class H felony (up to $10,000.00 fine, 6 years in prison).
- 1,000-2,500 grams is a Class G felony (up to $25,000.00 fine, 10 years in prison).
- 2,500-10,000 grams is a Class F felony (up to $25,000.00 in fines, 12.5 years in prison).
- Over 10,000 grams is a Class E felony (up to $25,000.00 in fines, 15 years in prison)
Have you been charged with a drug crime?
The criminal defense lawyers at Van Severen Law Office have defended a substantial amount of drug crimes. Whether you’ve been charged with possession of marijuana, delivery of heroin, or anything in between, we can help you. Our attorneys specialize in criminal defense. All of our resources are focused on defending crimes just like the one you’re alleged to have committed. Contact Van Severen Law Office at (414) 270-0202 to speak with an attorney today.