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Possession vs. Possession With Intent to Sell

Hug and Jacobs LLC April 9, 2024

When it comes to drug possession, there is a clear difference between having drugs on your person and possessing them with the intent to sell. Both are serious offenses, but the distinction between them not only affects the severity of the charges but can also significantly influence the legal strategies employed in defense cases.  

From the outside, these terms might seem interchangeable, but to the law, they have vastly different consequences. Whether you are facing a drug charge or are simply looking to improve your knowledge of drug possession law, it's essential to understand the differences between simple possession and possession with intent to sell.  

Key Differences

Simple drug possession refers to the act of having a controlled substance for personal use without any intent to distribute or sell it. This can include having drugs on your person, in your car, or even in your home. The classification of this offense and its penalties depend on several factors, including the type and quantity of the drug. Typically, simple possession is treated as a less severe offense. In Nebraska, it is often categorized under misdemeanors or lower-level felonies, and potential penalties may include fines, probation, or drug treatment programs rather than extensive prison time.  

Possession with the intent to sell is a more severe charge characterized by an individual having control over a controlled substance with the explicit purpose of distributing or selling it to others. In Nebraska, possession with intent to distribute or sell is considered a felony and carries stiffer penalties, including longer prison sentences, higher fines, and a more significant impact on an individual's future employment, housing, and educational opportunities.  

The key factor in determining a drug possession charge is the intent. This means that law enforcement must prove an individual either had the intention to sell or distribute the drugs or was just using them for personal use. Several factors are often considered to determine whether someone possessed drugs with the intent to sell. These include: 

  • The amount of drugs in possession: A significant amount of drugs, typically more than what would be considered for personal use, can indicate an intent to sell. 

  • Packaging and distribution materials: The presence of scales, baggies, or other items commonly used for drug distribution can also be used as evidence of intent to sell. 

  • Cash or large sums of money: Having a large amount of cash on hand can be seen as a sign of drug sales, as it may indicate the proceeds from previous sales. 

  • Prior convictions or involvement in drug-related activities: A person's criminal history and past involvement in drug trafficking can also be used to prove intent to sell. 

Drug Possession in Nebraska

In Nebraska, the laws on drug possession are defined by the Controlled Substances Act, which outlines both the classifications for drugs and the resulting penalties for their illegal possession. The Act categorizes drugs into five schedules. Schedule I drugs are considered the most dangerous due to their high potential for abuse and lack of accepted medical use. The penalties for possession vary significantly based on the schedule of the drug and the amount in possession. 

The possession of Schedule I and II drugs, which include substances such as heroin, cocaine, and methamphetamine, is considered a Class IV felony for simple possession. This can result in up to two years in prison, followed by 12 months of post-release supervision, and a fine of up to $10,000. For possession with the intent to sell, the penalties increase, with potential imprisonment between 1 to 20 years depending on the exact circumstances and type of felony classification. 

The possession of Schedule III, IV, or V drugs, which are typically viewed as having a lower potential for abuse and include certain prescription medications, is treated as a less severe offense but still carries significant consequences. Simple possession offenders may face a Class I misdemeanor, which can result in up to one year in jail along with a possible fine. 

Good Samaritan Law

Nebraska has adopted the Good Samaritan Law, which encourages individuals to seek medical help if someone they know is experiencing a drug overdose without fear of being prosecuted for drug possession. This law requires you to call law enforcement and stay with the person until help arrives. Applied under certain conditions, the Good Samaritan Law is aimed at reducing drug overdose deaths. 

Cannabis Possession

Nebraska maintains a strict stance on the possession of cannabis. Under Nebraska law, cannabis possession is illegal, and individuals found with marijuana are subject to legal penalties. The state has not legalized cannabis for recreational use and has stringent regulations even for medicinal purposes. Even small amounts intended for personal use can result in legal consequences, including fines and possible jail time. 

Potential Defenses for Drug Possession

When facing drug possession charges in Nebraska, several defense strategies may be employed by legal professionals to potentially reduce or dismiss the charges. However, each case is unique, and the outcome of one case does not dictate the outcome of another. An experienced drug possession attorney can help determine the most appropriate defense based on the specifics of the case. Some common defenses include: 

  • Lack of Knowledge: Arguing that the defendant was unaware of the presence of controlled substances in their possession. 

  • Lack of Possession: Demonstrating that the defendant did not have actual or constructive possession of the drugs. This could be applicable in situations where drugs were found in a location that was accessible to multiple people. 

  • Illegal Search and Seizure: Challenging the legality of law enforcement's method of obtaining evidence. Under the Fourth Amendment, if drugs were found as a result of an illegal search, that evidence could potentially be excluded from court proceedings. 

  • Medical Necessity: In cases involving certain Schedule III, IV, or V drugs, the defense could argue that the substances were medically necessary for the defendant. 

  • Entrapment: Suggesting that law enforcement induced the defendant into committing a crime that they otherwise would not have engaged in. 

  • "Good Samaritan" Defense: Demonstrating that the accused was seeking or aiding in seeking emergency medical assistance for someone experiencing an overdose. Often, the charges for possession can be waived under the statute.  

It is critical for individuals facing drug possession charges to consult with an attorney who is well-versed in Nebraska's drug laws and capable of effectively navigating the legal system to advocate on their behalf. 

Seek Experienced Legal Support

Facing drug possession charges can be an isolating experience. Engaging with an experienced drug possession attorney who understands Nebraska's drug laws is instrumental to mounting an effective defense. At Hug and Jacobs LLC, we will tenaciously fight on your behalf to make sure your voice is heard. Located in Omaha, Nebraska, our team proudly serves clients throughout Fremont, Lincoln, Papillion, and Wahoo.