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Drug Offenses in Oklahoma Criminal Law

Offenses and Punishment Ranges

When accussed of a drug charge, it is important to know ho wmuch time you are facing, whether there are alternatives to incarceration available (including probation or drug court), and whether you have a factual or legal defense to the charges.

Offenses and Punishment Ranges

Drug offenses are generally divided into three categories:(1) simple possession, (2)possession with intent to distribute and (3) trafficking/ manufacturing. The statutes governing drugoffenses were designed to punish those who possessed drugs less severely than those who possessed drugs with intent to distribute them, with those who manufacted and trafficked in drugs receiving the harshest treatment.

Misdemeanor Simple Possession

Possession with Intent to Distribute

To convict for possession of CDS with the intent to distribute under Title 63 O.S. Sextion 2-401, the state must prove beyond a reasonable doubt the Defendant knowingly and intentionally possessed the CDS with the intent to distribute it. "Distribute" means "to deliver other than by administering or dispensing a controlled dangerous substance." (See Title 63 O.S. Section 2-101(12).

One will be convicted of possession with intent to distribute if the state proves intent to deliver the drugs to another person, even if it is not for profit. So, if a Defendant picks up drugs for a friend, and intends on delivering the drugs to that friend, he or she could be charged with possession with intent to distribute. Title 63 O.S. Section 2-401 governs punishment for possession with intent to distribute a CDS. The punishment ranges vary depending upon the type of substance and whether the person has prior convictions. for the first time offenders accussed of possessing a Schedule I substance that is a Narcotic or LSD, punishment ranges from 5 years to life in prison. For those accused of possessing a Schedule V substance with intent to distribute, punishment ranges from 0 to 5 years in prison.

Second and subsequent convictions for possession with intent to distribute are also subject to punishment under the habitual offender statute, discussed above. This means, where the accussed has one prior conviction, the minimum sentence is life imprisonment. For those with two prior felony convictions, the minimumm sentence is tripled, and the maximum sentence is life imprisonment. Second and subsequent convictions under the possession with intent to distribute statute do not qualify for a suspended or deferred sentence, and are not subject to the 85% rule.

Trafficking in Illegal Drugs

Title 63 O.S. Section 2-415 governs "trafficking in illegal drugs." The state does not have to prove that the Defendant was selling or even intending to sell drugs in order to obtain a conviction for trafficking. They must only prove the Defendant knowingly possessed a specific amount of a CDS- a trafficking quanitity.

Trafficking carries severe punishment. A Defendant who has no prior Title 63 convictions and is convicted of trafficking will be required to serve twice the minimum sentence he or she would be required to serve if convicted of possing with intent to distribute that drug. If the Defendant has just one prior Title 63 conviction and is convicted of trafficking, the sentence is tripled.

Those convicted under the trafficking statute are not eligible for good time credits and suspended and deferred sentences. Trafficking is not subject to th e85% rule. Defendants convicted of trafficking can be paroled after serving 1/3 of their sentence (with th eexception of life without the possibility of parole). However, if an individual is convicted of trafficking and is not paroled, he or she will likely serve close to 100% of the sentence because such a sentence carries no eligibility for good time credits.

Sentences vary depending upon th etype of cDS. For example, in Oklahoma, an individual must possess 28 grams of powder cocaine in order to be considered "trafficking in cocaine," but only 5 grams of crack in order to br considered "trafficking in crack."

Factual Defenses to Trafficking

Proximity vs Possession

It is not sufficint for the state to prove mere proximity of drugs to a Defendant-the stat emust prove that the Defendant had knowledge and control of the drugs before possession can be established.

Constructive possession my be established by "ownership, domain and control over the contraband." Possession may also be inferred, "...when the contraband is found in a place which is exclusively accessible or used by the accused and subject to his dominion and control." But the "mere proximitity to contraband" or "mere association with a person who has actual or constructive possession of the contraband, is insufficient to support a conviction." There must be, "additional evidence establishing the accused's knowledge and control." So a possible defense to possession is the Defendant's lack of knowledge or control over the substance, or that the substance was not found in a place exclusively accessible to the Defendant.

Personal Use Defense

When an individual is charged with possession with intent to distribute, a possible defense could be that the person possessed the drugs only for personal use. The presence of baggies, scales, drug notations, and unexplained wealth can become significant factors if a Defendant is arguing the drugs were just for personal use. When using a personal use defense the Defendant would still be convicted of simple possession, but would avoid the harsher penalty for possession with intent to distribute.

Evidence of trafficking

Since there is no intent to distribute requirement for the a trafficking charge arguing that a Defendant did not intend to distribute the drugs is not a defense. Any factual defense against trafficking must revolve around proximity not possession and/or the amount of drugs not amounting to the trafficking wait.

Legal Defenses-the Fourth Amendment

Search warrants

The police must obtain a valid search warrant to search for drugs unless the search falls within one of th eexceptions to th ewarrant requirement. A warrant is issued only if probable cause exists to believe that seizable evidence will be found on a person or a premises when the warrant is executed. The police must submit an affidavit to a judge and a judge must agree that probable cause exists. The warrant must be precise on its face, describing with reasonable precision the place to be searched and the items to be seized. Only police may execute a warrant, and it must be done without unreasonable delay.


Search Incident to Lawful Arrest

The Automobile Exception

"Plain View" Exception

"Stop and frisk" Exception

Return to the Oklahoma Criminal Law Guide

Kevin D Adams, Attorney at Law
417 West 7th Street, Suite 202 Tulsa, Oklahoma 74119
Phone: 918 582 1313