Possession With Intent to Deliver– Is a prosecution drug expert necessary?

Possession With Intent to DeliverI’ve written previous blogs on criminal charges based on the possession of controlled substances and possession with intent to deliver (PWID). Recently, I defended another case in Philadelphia, Pennsylvania that demonstrated the need for a prosecution expert in order for the assistant district attorney (ADA) to meet the burden of proof of guilt beyond a reasonable doubt.  The prosecution in this most recent cases wasn’t able to convict my client of PWID because it failed to present an expert with regards to his involvement in the case.  While the case did involve drug sales, my client wasn’t involved in any of them.

If you’re charged with a drug crime in Pennsylvania, it’s very important to understand the difference with between possession and possession with the intent to deliver a drug or controlled substances. Simple Possession of a drug is misdemeanor offense while PWID is a felony.   A felony conviction could severely limit your professional and educational opportunities. Many employers may disqualify you from certain job opportunities simply because of such a conviction without providing you with an opportunity to explain it.

If you’re charged with possession with the intent to deliver a drug, the prosecution may need to present an expert witness to prove this felony charge. While an expert isn’t always necessary, one is needed in cases where there is no evidence of observed transaction/drug sales or drug. Keep in mind that there is good case law in Pennsylvania which states that the prosecution can’t meet it’s burden of proof for a PWID simply on the quantity of drugs!  In the case of Commonwealth v. Bagley , the Pennsylvania Superior court held that a defendant’s possession of 11 glassine bags containing a total of 15.3 grams of heroin was insufficient to support the charge of possession with the intent to deliver a controlled substance.

The prosecution in this cases relied on the quantity of the drugs. Further it failed to produce a drug expert who could have testified that the defendant was seller of narcotics rather than an addict and that the quantity possessed was consistent with drug sales rather than personal use. The assistant district attorney in this case, much like in the case that I handled this week, couldn’t present any evidence of drug sales or transaction to support the charge.

In addition to the lack of expert testimony, the prosecution, didn’t present any evidence of drug paraphernalia such as unused baggies, razor blades, rubber bands or a large quantity of money which could have prevented the need for an expert. Criminal courts in Pennsylvania will consider the quantity of the drugs, their street value, the drug’s packaging, and the presence of paraphernalia.

If the prosecution does plan on producing an expert, your defense lawyer needs to have strategy to address it and perhaps consider retaining a defense expert to advance an alternative theory.   For more information on drug crime defense, read my book—What Everyone Should Know About Drugs, Guns and Defense Lawyers in Pennsylvania.

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