Drug Offenses

Drug Offense Lawyers – Portland

General Statement

Drug charges are serious and may entail the possibility of jail or prison time. Drug charges often start with possession, but then overlap with other offenses. Minimum sentences can range from 16-130 months in prison. The extent of incarceration you may receive will depend upon a number of factors:

  • The charge itself: possession, delivery, manufacture [federal charge of trafficking-transporting controlled substances across borders]
  • The quantity and type of controlled substance.
  • Your history
  • The jurisdiction (county) of your case
  • Were you apprehended within 1000 feet of a school? Were minors involved?
  • Are you willing to enter into a diversion / drug treatment program?

Major Drug Charges Under Oregon Law (Possession, Delivery, Manufacture)

  • POSSESSION: Under ORS annotated 161.015(9) to “possess” means to have physical possession or otherwise to exercise dominion or control over property. This means that the controlled substance is on your person, in your home, or in your vehicle.i
    Oregon Revised Statute Offense Level Charge
    ORS 475.854 B Felony Unlawful possession of heroin
    ORS 475.864(2) B Felony (may be expunged) Unlawful possession of marijuana (an ounce or more)
    ORS 475.864(3) Violation (may be expunged) Unlawful possession of less than an ounce of marijuana
    ORS 475.864(4) C Misdemeanor (may be expunged) Unlawful possession of less than an ounce of marijuana with in 1000ft of a school
    ORS 475. 874 B Felony Unlawful possession of MDMA / Ecstasyii
    ORS 475.884 C Felony (may be expunged) Unlawful possession of cocaine
    ORS 475.894 C Felony (may be expunged) Unlawful possession of methamphetamine

    Possession of a controlled substance is the most common drug charge. For a possession conviction, the government must prove that the accused person:

    • knowingly and intentionally possessed a controlled substance
    • without a valid prescription, and
    • in a quantity sufficient for personal use or sale.

     

    A possession charge can be based on actual or “constructive” possession of a controlled substance. Constructive possession means that you don’t need to actually carry the controlled substance with you. A possession charge is still possible if you had access to and control over the place where the drugs were found (a locker, a vehicle, in your house). This is important to note because, the government does not have to actually prove that you were using a controlled substance in order to charge you with possession.

    A possession charge may include paraphernalia associated with drug use, such as syringes, cocaine pipes, scales, packaging, etc.

    Charges for simple possession are often less serious than charges for possession with an intent to distribute. The difference here does not necessarily turn on an actual intent to distribute, but on the amount of the substance found in the defendant’s possession (i.e. smaller amounts are usually charged as misdemeanors, while larger amounts can be used to suggest felony possession with an intent to distribute).

  • DELIVERY: Under ORS 475.005 (8) “delivery” means the actual, constructive or attempted transfer from one person to another of a controlled substance. This means that controlled substance delivery charges stem from giving, providing, or selling drugs to another person.
    Oregon Revised Statute Offense Level Charge
    ORS 475.850 A Felony Unlawful delivery of heroin
    ORS 475.852 A Felony Unlawful delivery of heroin within 1000ft of a school
    ORS 475.860(2)(a) B Felony (may be expunged) Unlawful delivery of marijuana for consideration
    ORS 475.860(2)(b) C Felony (may be expunged) Unlawful delivery of marijuana for no consideration (more than an ounce)
    ORS 475.860(3)(a) A Misdemeanor (may be expunged) Unlawful delivery of marijuana for no consideration (less than an ounce)
    ORS 475.860(3)(b) Violation (may be expunged) Unlawful delivery of marijuana for no consideration (less than 5 grams)
    ORS 475. 860(4)(a) A Felony Unlawful delivery of marijuana to person under 18 years of age if the defendant is at least 18 years of age and is 3 or more years older than the recipient
    ORS 475.860(4)(b) C Misdemeanor (may be expunged) Unlawful delivery of marijuana for no consideration within 1000ft of a school
    ORS 475.862 A Felony Unlawful delivery of marijuana within 1000ft of a school
    ORS 475.870 A Felony Unlawful delivery of MDMA / Ecstasy
    ORS 475.872 A Felony Unlawful delivery of MDMA / Ecstasy within 1000ft of a school
    ORS 475.880(2) B Felony Unlawful delivery of cocaine
    ORS 475.880(3) A Felony Unlawful delivery of cocaine to a person under 18years of age
    ORS 475.882 A Felony Unlawful delivery of cocaine within 1000ft of a school
    ORS 475.890(2) B Felony Unlawful delivery of methamphetamine
    ORS 475.890(3) A Felony Unlawful delivery of methamphetamine to a person under 18 years of age
    ORS 475.892 A Felony Unlawful delivery of methamphetamine within 1000ft of a school

 

  • MANUFACTURE: Under ORS 465.005 (15) “manufacture” means the production, preparation, propagation, compounding, conversion or processing of a controlled substance and includes packaging or repackaging (and labeling or relabeling) of the substance. “Manufacture” includes growing marijuana.
    Oregon Revised Statute Offense Level Charge
    ORS 475.846 A Felony Unlawful manufacture of heroin
    ORS 475.858 A Felony Unlawful manufacture of heroin within 1000ft of a school
    ORS 475.856 A Felony Unlawful manufacture of marijuana
    ORS 475.858 A Felony Unlawful manufacture of marijuana within 1000ft of a school
    ORS 475.866 A Felony Unlawful manufacture of MDMA / Ecstasy
    ORS 475.868 A Felony Unlawful manufacture of MDMA / Ecstasy within 1000ft of a school
    ORS 475.876 B Felony Unlawful manufacture of cocaine
    ORS 475.878 A Felony Unlawful manufacture of cocaine within 1000ft of a school
    ORS 475.886 B Felony Unlawful manufacture of methamphetamine
    ORS 475.888 A Felony Unlawful manufacture of methamphetamine within 1000ft of a school

ORS §161: General Sentencing Scheme: FELONY OFFENSE (except where reduced to a misdemeanor or stipulated by statute)

Class Maximum Potential Incarceration Term Maximum Potential Fine
A 20 years $375,000
B 10 years $250,000
CRS 5 years $125,000

§161: General Sentencing Scheme: MISDEMEANOR OFFENSE (except where stipulated by statute)

Class Maximum Potential Incarceration Term Maximum Potential Fine
A 1 years $6,250.00
B 6 months $2,500
C 30 days $1,250

Substantial Quantities: ORS 475.900. Under Oregon law substantial quantities of controlled substances can result in increased penalties:

  • Five grams or more of a mixture or substance containing a detectable amount of heroin;
  • Ten grams or more of a mixture or substance containing a detectable amount of cocaine;
  • Ten grams or more of a mixture or substance containing a detectable amount of methamphetamine;
  • One hundred grams or more of a mixture or substance containing a detectable amount of hashish;
  • One hundred and fifty grams or more of a mixture or substance containing a detectable amount of marijuana;
  • Two hundred or more user units of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);
  • Sixty grams or more of a mixture or substance containing a detectable amount of psilocybin or psilocin (mushrooms); or
  • Five grams or more or 25 or more pills, tablets or capsules of a mixture or substance containing a detectable amount of MDMA / Ecstasy:

Commercial Drug Offense: ORS 475.900. Possession, delivery, or manufacture is a commercial drug offense if it is accompanied by at least three of the following factors:

  • The delivery was of heroin, cocaine, hashish, marijuana, methamphetamine, lysergic acid diethylamide, psilocybin or psilocin and was for consideration;
  • The offender was in possession of $300 or more in cash;
  • The offender was unlawfully in possession of a firearm or other weapon as described in ORS 166.270 (2), or the offender used, attempted to use or threatened to use a deadly or dangerous weapon as defined in ORS 161.015, or the offender was in possession of a firearm or other deadly or dangerous weapon as defined in ORS 161.015 for the purpose of using it in connection with a controlled substance offense;
  • The offender was in possession of materials being used for the packaging of controlled substances such as scales, wrapping or foil, other than the material being used to contain the substance that is the subject of the offense;
  • The offender was in possession of drug transaction records or customer lists;
  • The offender was in possession of stolen property;
  • Modification of structures by painting, wiring, plumbing or lighting to facilitate a controlled substance offense;
  • The offender was in possession of manufacturing paraphernalia, including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment;
  • The offender was using public lands for the manufacture of controlled substances;
  • The offender had constructed fortifications or had taken security measures with the potential of injuring persons; or
  • The offender was in possession of controlled substances in an amount greater than:
    • Three grams or more of a mixture or substance containing a detectable amount of heroin;
    • Eight grams or more of a mixture or substance containing a detectable amount of cocaine;
    • Eight grams or more of a mixture or substance containing a detectable amount of methamphetamine;
    • Eight grams or more of a mixture or substance containing a detectable amount of hashish;
    • One hundred ten grams or more of a mixture or substance containing a detectable amount of marijuana;
    • Twenty or more user units of a mixture or substance containing a detectable amount of lysergic acid diethylamide;
    • Ten grams or more of a mixture or substance containing a detectable amount of psilocybin or psilocin; or
    • Four grams or more or 20 or more pills, tablets or capsules of a mixture or substance containing a detectable amount of MDMA / Ecstasy

Multnomah County STOP Court / Drug Court (other counties generally have similar programs)

  • STOP court offers non-violent drug offenders a deferred sentencing agreement and intensive treatment program. Upon successful completion of the program, the charges will be dropped and your record will be cleared.
  • The program is overseen by the judge, and involves a rigorous schedule of random urinalyses (UAs), court appearances, and group and one-on-one counseling sessions that may last for more than one year.
  • You must pay the cost of the program.
  • If you do not complete the program, you will be convicted of the charge.

Notes

 

DRUG CHARGES – WASHINGTON STATE

The charges against you and the punishment will depend upon a number of factors:

  • Quantity of drugs in your possession
  • The type of drug (marijuana, meth, cocaine, crack, heroin)
  • Purpose of possession: for personal use or with the intent to sell or distribute
  • Evidence of sales or manufacturing activity
  • Related weapons charges
  • Related money charges: money laundering and tax evasion
  • Your past criminal history (offender score)

VUSCA-Violation of the Uniform Controlled Substance Act (RCW 69.50)

  • Some of the drugs that are defined as “controlled substances”
    • Heroin
    • Cocaine and its derivatives (Crack-cocaine)
    • Barbiturates
    • Methamphetamine
    • Hallucinogens (Mushrooms, PCP, LSD, MDMA / Ecstasy, Peyoteiii)
    • Marijuana
  • VSUCA Crimes
    • Possession, Manufacture, Cultivation, Delivery, Sale
    • Possession of drug paraphernalia, manufacturing components, or precursors
    • Prescription drug crimes

Delivery of Controlled Substance (RCW 69.50.4012)

  • It is unlawful to offer, arrange, or negotiate for the sale, gift, delivery, dispensing, distribution, or administration of a controlled substance to nay person
  • Class C Felony (RCW 9A.20)

Possession of Controlled Substance (RCW 69.50.4013)

  • It is unlawful for any person to possess a controlled substance unless by prescription
  • Class C Felony (RCW 9A.20)
  • Possession of 40 grams or less of marijuana-misdemeanor (RCW 69.50.4014)

Involving a Person under the Age of 18 in an Unlawful Substance Control Transaction (RCW 69.50.4015)

  • It is unlawful to compensate, threaten, solicit or in any other manner involve a person under the age of 18 in a transaction unlawfully to manufacture, sell, or deliver a controlled substance
  • Class C Felony

Distribution to Person under Age 18 (RCW 69.50.406)

  • Any person eighteen years of age or older who distributes a controlled substance (narcotic or methamphetamine) to a person under eighteen years of age is guilty of a Class A Felony
  • Punishable by a fine (RCW 69.50.401) and/or by a term of imprisonment (may be doubled)
  • The person who distributes controlled substance (not a narcotic or methamphetamine) to a minor three years his junior may face a Class B Felony

Constructive Possession

  • The state prosecutor can show you had possession of a drug even if it was not in your hand, in your pocket, or on your person.
  • The state only needs to show that the drug was in your dominion (in your car, locker, house, etc.) and control.

Sentence Scheme

    • Under Washington law it is unlawful for any person to possess, manufacture, cultivate, deliver, or sell a controlled substance without a valid prescription. RCW 69.50.4013
    • Under RCW 9A.20, a violation of the controlled substance law is a class C felony

 

1st Offense—possession of 5 year maximum incarceration term
2nd Offense—possession of 5 year maximum incarceration term
1st Offense—sale of 2 year mandatory minimum incarceration term
2nd Offense—sale of 10 year mandatory minimum incarceration term
  • In addition to incarceration, any person convicted of violation of the controlled substance law shall be fined in an amount calculated to at least eliminate any profit or proceeds from the sale of a controlled substance up to $500,000 for each count.
  • Sentencing and fines may be increased if the controlled substance violation involved a minor (under 18 years of age) in any way.
  • Sentencing and fines may be increased if the controlled substance violation involved another felony offense
  • Sentencing and fines may be doubled if the controlled substance violation occurred
    • In a school or within 1000 feet of a school
    • On a school bus or within 1000 feet of a school bus
    • In a public park
    • In a public housing project that has been designated drug-free
    • In a designated drug-free civic center
    • AFFIRMATIVE DEFENSE to this section
      • You may raise an affirmative defense if the controlled substance violation took place entirely within a private residence and no minors were present, and conduct did not include delivering, manufacturing, selling, or possessing with intent to manufacture, sell, or deliver
    • Ignorance of a designated drug-free zone is not a defense

Misdemeanor Violations-Minimum Penalties (RCW 69.50.425)

  • Minimum imprisonment term is 24 hours and a fine of at least $250
  • Second or subsequent misdemeanor violation results in a $500 fine

Immunity

  • Any person, addicted to the use of a controlled substance, who voluntarily applies to the department of social and health services for the purpose of participating in a rehabilitation program approved by the department for addicts of controlled substances shall be immune from prosecution. Application must be prior to indictment.

Sentencing Alternatives (RCW 9.94A.650)

  • In sentencing a first-time offender the court may waive the standard sentence and instead impose a sentence which may include up to ninety days in a state approved facility and may include drug treatment or community custody or both.
  • Home detention
  • The court may order the defendant to pay court-ordered legal financial obligations and/or perform community service or pay $30/month to offset costs
    • These alternatives are available only if the defendant has no prior convictions for sex/violence offenses in the United States, and
    • The defendant is not subject to deportation
  • The court takes into consideration:
    • Addiction
    • The probability that criminal behavior will occur in the future
    • Whether effective treatment is available
    • The benefits to the community and to the defendant
  • Failure to successfully complete the alternative sentence may result in a term of confinement

 


  1. Evidence was not sufficient to support finding that defendant had constructive possession of methamphetamine found in his girlfriend’s bag, and thus evidence did not support conviction for possession of methamphetamine; although there was evidence that defendant had previously sold methamphetamine and that girlfriend’s bag was found in defendant’s bedroom, there was no evidence that defendant’s girlfriend was more than a social guest, there was no evidence that defendant knew the bag was in his bedroom or that it contained methamphetamine, and there was no evidence that defendant had control over or permission to open his girlfriend’s bag. The Supreme Court of Oregon held that the evidence was not sufficient to support finding that defendant had actual possession of methamphetamine found in his girlfriend’s bag, and that the evidence was not sufficient to support finding that defendant had constructive possession of methamphetamine found in his girlfriend’s bag. State v. Daniels (2010) 234 P.3d 976
  2. (3,4-methylenedioxymethamphetamine)
  3. In 1994, Congress amended the American Indian Religious Freedom Act of 1978 to allow Native Americans the right to use, transport and possess peyote for religious purposes.See State v. Balzer (1998) 954 p.2d 931″Our decision is consistent with case law discussing the use of peyote because, as some courts have held, marijuana use is distinguishable from the use of peyote by members of the Native American Church. For instance, as the court stated in Rush, the exemption for peyote is “properly viewed as a government effort toward accommodation for a readily identifiable, narrow category which has minimal impact on the enforcement of the laws in question.” Rush, 738 F.2d at 513 (quoting United States v. Lee, 455 U.S. 252, 256-59, 102 S.Ct. 1051, 1054-56, 71 L.Ed.2d 127 (1982) (internal quotes omitted)). Moreover, the court determined that “the peyote exemption is uniquely supported by the legislative history and congressional findings underlying the American Indian Religious Freedom Act.” See also Olsen v. Iowa, 808 F.2d 652 (8th Cir.1986) (affirming Iowa Supreme Court’s holding that exemption for Native American Church’s ceremonial use of peyote applied only to controlled and isolated circumstances, in contrast to Coptic Church members’ continuous and public use of marijuana regardless of age or occupation).”

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