Over the last several decades, both federal and states laws in the United States have steadily changed to become less forgiving when the crime is a drug-related offense. Legislators have consistently “beefed up” statutes relating to controlled substance offenses and courts have handed down increasingly harsh penalties for those defendants convicted of violating the statutes. Legislators, law enforcement officers, and judges all agree, however, that a distinction must be made between crimes of possession and crimes involving delivery of a controlled substance. To help you understand this important distinction, and Omaha drug lawyer explains the difference between delivery and possession.
Understanding Federal vs. State Laws
Anytime the issue of delivery, sale, or manufacture of a controlled substance is part of a discussion, it is important to make sure that the difference between federal and state laws is understood first. In the United States, we operate under a federalist form of government which means we have a strong central government (federal government) as well as numerous smaller, semi-autonomous governments (the individual states). As such, both the federal government and the state governments may enact laws. Furthermore, we have two distinct court systems where violations of those laws are prosecuted. The simplified rule of thumb is that a state may enact similar criminal laws but they may not override a federal law. For example, they could enact a law that makes it a felony to be in possession of a specific controlled substance even though the federal counterpart makes it a misdemeanor. If you violate a drug law, you could be charged in state court, federal court, or both. In reality, however, the federal law enforcement agencies usually only investigate and prosecute large trafficking cases.
In the State of Nebraska, the Nebraska Revised States govern criminal offenses related to the possession and delivery of a controlled substance. Specifically, Subsection (1) reads as follows:
“Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or (b) to create, distribute, or possess with intent to distribute a counterfeit controlled substance.
As you will note, the same statute encompasses both the possession and the delivery of a controlled substance, making both a criminal offense. Although both are illegal, the repercussions of a conviction for both are very different as you can imagine.
Penalties for Possession and Delivery of a Controlled Substance in Nebraska
Because it can be challenging to prove that a defendant was “delivering” a controlled substance, the law effectively infers delivery or sale by the quantity of the substance involved. As the quantity of the substance involved increases, so do the penalties. For example:
- Possession of less than an ounce of marijuana is charged as an infraction for a first offense and there is no possibility of being sentenced to jail at all if convicted. Furthermore, possession of marijuana only becomes a felony offense if the quantity involved is more than one pound, at which time the charge becomes a Class IV felony, punishable by up to two years in prison.
- Possession of at least 10 grams but less than 28 grams of cocaine shall be guilty of a Class ID felony. Possession of 140 grams or more, however, is charged as a Class IB felony which carries a much harsher penalty.
By focusing on the quantity and simply inferring that the drugs were not for the defendant’s personal use the prosecutor is not required to specifically prove that the defendant “delivered” the drugs. Conversely, it is possible to argue that the drugs were, indeed, intended for the defendant’s personal use. Just as people go to Sam’s Club and Cosco to purchase items in bulk, some people also purchase their drug of choice the same way.
Contact an Omaha Drug Lawyer at Petersen Law Office
If you have been charged with a criminal offense in the State of Nebraska, consult with an experienced Nebraska criminal defense attorney as soon as possible to ensure that your rights are protected. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.