Possession is the least serious drug crime, but sometimes the state pursues more serious charges after arresting a person because of the drugs in their possession. In some situations, defendants accused of possessing controlled substances might face possession with intent charges.

Frequently, that means the defendant faces felony prosecution. What does it mean to possess a drug with intent?

The drugs were not for personal use

When prosecutors pursue possession with intent charges, the assertion is essentially that the defendant did not intend to use the drugs themselves. Instead, the goal was to distribute the drugs to others or to use the substances in their possession to manufacture drugs. The difference between possession and possession with intent can be minor.

Having slightly too much of a substance on hand can lead to a possession with intent charge. The presence of certain types of paraphernalia could also lead to the state assuming that an individual intended to distribute drugs to others. Connections to those associated with drug trafficking and prior convictions can also justify the prosecution’s decision to pursue more serious drug charges against a defendant.

Individuals accused of possession with intent may need to develop a very different defense strategy than those accused of simple possession. Understanding how the state justifies more serious drug charges could be the first step toward a reasonable defense strategy.

If you or someone you care about is in this situation, you’re not alone. Many have successfully navigated this path with the right defense strategies. In this blog, we’ll explore some common defenses used in drug charge cases, helping you understand potential paths to protect your future.

Defense strategies

When faced with drug charges, understanding the available defense strategies can make a significant difference in the outcome of your case. Here are common examples:

1. Challenging illegal searches and seizures: One of the most powerful defenses is questioning how authorities found evidence. If cops conducted an unlawful search or seizure without proper cause or a warrant, it might be inadmissible.
2. Questioning lab test accuracy: The prosecution often uses lab tests to identify substances. However, errors can occur during evidence collection, storage or testing.
3. Claiming entrapment: Entrapment involves law enforcement inducing someone to commit a crime they wouldn’t have otherwise committed. If you believe cops coerced you into committing the offense, this defense might apply.
4. Arguing duress: If you possessed drugs because someone threatened you or a loved one, placing you in danger, this might be a valid defense.
5. Asserting lack of possession: Simply being near drugs doesn’t mean they are yours. If you didn’t possess the drugs, this defense may be effective.

Each defense strategy requires thoroughly examining the facts and circumstances surrounding your case. It is crucial to work with an attorney to gather evidence, identify weaknesses in the prosecution’s case and develop a defense that fits your specific situation.

Know your options

Understanding your defense options is the first step in tackling drug charges. Each case is unique, and the right strategy depends on the specifics of your situation. By consulting with an experienced attorney, you may build a strong defense tailored to your circumstances.

This short blog will explore why this happens and what it means for those facing drug charges. After reading, they can understand how crucial it is to have a lawyer who can help develop a solid defense strategy.

Harsh penalties for drug possession

In Illinois, many individuals facing drug charges find themselves up against harsh penalties, even when caught with small amounts. This is often due to the way charges are determined.

Instead of receiving a “possession” charge, many are accused of “possession with intent to deliver.” This charge carries the same weight as delivering or selling drugs, leading to much stiffer penalties.

The criteria used to determine “intent to deliver” are often broad and can apply to almost anyone. For example, cops may interpret having a cell phone or drug paraphernalia as having “intent to distribute.” As a result, someone with a minimal amount of drugs could face serious felony charges. The severity of these drug charges can range from a Class 4 felony to Class 1, mainly depending on the arrest location and the authorities’ decision.

Why do you need a lawyer?

Facing drug charges in Illinois can be daunting, especially if a court decides to escalate a drug possession charge to possession with intent. An experienced defense lawyer can help those facing this issue navigate these complexities. They will defend the rights of the accused, challenge the evidence and negotiate for reduced charges if possible.

Employment opportunities

A drug charge can make job hunting more difficult. Many employers conduct background checks, and a drug conviction may be a red flag. It can limit your options and make it harder to find work, particularly in areas that demand a clean record.

Housing and rental prospects

Securing housing can also become a challenge. Like potential employers, landlords also conduct background checks and may be hesitant to rent to someone with a drug conviction. This can limit your options and make finding a place to live more difficult.

Chance for higher education

A drug charge can affect your education too. Some colleges and universities may deny admission to applicants with drug convictions. Additionally, you might lose eligibility for federal student loans and grants, making it harder to afford higher education.

Social stigma

The social stigma attached to a drug conviction can impact your personal relationships. Friends, family, and community members might view you differently, which can strain relationships and lead to feelings of isolation.

Loss of civil rights

In Illinois, a felony drug conviction may result in the loss of some civil rights. You may lose your privilege to vote, serve on a jury, or possess guns. These losses can have a significant influence on your sense of belonging and participation in society.

A drug charge can have far-reaching consequences that extend well beyond the courtroom. Understanding these potential impacts can help you make informed decisions and seek the right support. If you are facing a drug charge, you may want to seek help from a legal professional who can guide you in navigating these challenges and protecting your future.

Seizures can happen during arrests, searches or investigations. Property owners might lose their assets suddenly, often without a quick way to get them back. This can be stressful and confusing, especially if you’re not prepared for the legal issues that might follow.

How can you protect your property?

The state must notify you after your property is taken. This notice is important because it helps you understand the reason for the seizure and prepare your response:

• Promptly request a hearing: Ask for a hearing right away to argue that the seizure was unfair and present your evidence. Acting fast is crucial to protect your rights.
• File for exemption: If you did not know about the illegal use of your property or someone else used it without your consent, you might be able to claim an exemption under DAFPA.
• Challenge the state’s evidence: During forfeiture proceedings, the state only needs to show that your property’s involvement in the crime is more likely than not, a lower standard called “preponderance of the evidence.” You can challenge the state’s evidence by showing your proof, like documents, receipts or witness statements, to prove your property was not involved in illegal activities.

An experienced attorney can help you understand the legal process, prepare your defense and represent you in court, increasing your chances of getting your property back.

Act quickly and stay informed

Whether it’s requesting a prompt hearing, challenging the state’s evidence or seeking legal representation, there are ways to fight for your property. Equip yourself with the knowledge and support you need to stand up for your rights.

Some task forces are organized to investigate specific criminal or national security threats, and one of these is the Southern Illinois Transnational Organized Crime West (TOCW). This task force is operated out of the FBI Field Office in Carlyle, Illinois.

This task force was organized to fight large scale drug organizations and conspiracies that have the sole purpose of importing illegal drugs from southern Mexico into the United States.

Latest cooperative effort

The TOC-W task force has been recently focused on the activities of Mexican drug cartels in southern Illinois. The joint efforts of the task force produced the arrests of eight individuals on charges of drug possession and distribution of methamphetamine and fentanyl.

The eight individuals were arrested on charges of possession of fentanyl and methamphetamine with intent to distribute. The other counts involved counts of possession of methamphetamine or fentanyl, with intent to re-sell.

The results of the arrests

The joint arrests resulted in the incarceration of individuals who have been instrumental in facilitating the international conveyance of various illicit drugs into the United States with intent to sell.

The individuals who have been arrested and charged with drug crimes now face strict international penalties for their activities in the international incorporation and sale of illicit drugs.

Anyone charged with such crimes will need an experienced criminal defense attorney to help them escape or lessen the severe penalties for which they have been charged.

What next?

Any of the individuals who have been arrested by the efforts of the joint task force will need assistance of counsel to achieve the best outcome, whether it its an acquittal or a lenient plea agreement.

Given the high number of defendants, the chances of a beneficial plea agreement are high if an experienced lawyer is available to provide advice.

But even if the evidence seems stacked against you, there might be effective criminal defense strategies that you can utilize to either secure a favorable plea deal or beat the prosecution outright. Let’s take a quick look at some of them.

Drug possession defenses you might be able to use in your case

Not every defense will be available to you, as many of them are fact specific. However, here are some common defenses that are raised in these cases:

• The drugs in question were illegally seized after an illegal search, such as when police lack the requisite suspicion or cause to pull you over or they errantly use an exception to the warrant requirement.
• The lab tests used to confirm the type of substance recovered are questionable due to errors in evidence collection, storage, and handling.
• The police entrapped you into committing the offense in question.
• You only possessed the drugs because you were being threatened by someone, putting you or your loved one at risk of harm if you didn’t comply with the request to possess the drugs in question.
• You didn’t actually possess the drugs in question.

Which criminal defense strategy is right for you?

Only you can answer that question, but we hope that the strategies mentioned above give you a good starting point for thinking about how to build your defense. If you need additional guidance, then now is the time to figure out the best way to secure answers to any questions that you might have.

Many people are nervous in the presence of authority and are afraid to refuse to answer questions asked by police officers. As a result, they end up incriminating themselves or getting pressured into admitting to things they did not do. It is likely in your best interest to be polite and respectful but avoid speaking to police as much as possible without your attorney present.

Miranda rights violations

Under the Fifth Amendment of the U.S. Constitution, police officers may not interrogate someone in police custody without reading them their ”Miranda Rights.” Before beginning to question you, the officer must say that you have the right to remain silent, that anything you say can be used against you, that you have the right to an attorney, and that if you cannot afford one, one will be appointed to you.

If an officer begins to interrogate you without informing you of your rights or continues to question you after you have exercised your right to remain silent and/or requested an attorney, the officer may have violated your Fifth Amendment rights. As a result, any incriminating statements you make may not be used against you in court.

A drug crime conviction may carry serious penalties, including years in prison and significant monetary fines. Establishing that your Constitutional rights were violated may be the best way to avoid these serious penalties.

Know the details of a marijuana DUI investigation

Just as people are not allowed to drive a vehicle with a certain amount of alcohol in their system, they are also prohibited from driving with marijuana in their system. This is true whether the person was using it medicinally or recreationally.

Even carrying it in the vehicle has specific rules as it must be in a sealed, child-resistant and odor-proof container. Passengers should not use marijuana while riding in the vehicle as this too can result in charges for the driver.

If a law enforcement officer stops a vehicle on suspicion of DUI, the driver must submit to a field sobriety test or chemical testing when asked to do so. Refusal is a charge on its own and the driver’s license will be suspended independent of whether they were under the influence.

When a driver’s license is suspended based on a field sobriety test, the driver can challenge it within 90 days. Perhaps the officer did not have reasonable suspicion that the driver was operating the vehicle or was in physical control of it while under the influence. It can also be questioned whether the driver refused to submit to the test or admitted to having used marijuana.

Any DUI charge can be fought

Like alcohol-related DUI, there are myriad consequences that can result from a conviction including lost driving privileges, fines and jail time. There are, however, strategies that a person can use to try and fight the charges, reduce them or avoid a conviction altogether.

With the holiday season in full swing, people will be attending events and parties with family and friends. There is a likelihood that they will have alcohol or marijuana available to them. Law enforcement is increasing its presence and initiating a crackdown to catch people allegedly driving under the influence over the holidays.

Those who are arrested and charged should understand how to assess the case and craft an effective defense with guidance from those who are keenly aware of how prosecutors and law enforcement pursue convictions.

Your arrest was likely based on the theory of constructive possession. This means that you are legally in possession of the drugs even though they were not within your physical control.

Constructive possession is different from actual possession, which is when you are found with drugs physically on you.

Knowledge and control

To find you guilty using the theory of constructive possession, the prosecution must prove beyond a reasonable doubt that you knew the drugs were there and you had the ability to control the drugs.

You cannot be found guilty under constructive possession without both elements being proven. For example, if drugs are found in your vehicle but you did not know they were there, you cannot be guilty of drug possession.

Likewise, if you are found in a vehicle where drugs are present but you do not own the vehicle, this can cast doubt on whether you have control over the drugs and potentially serve as a defense to a charge of constructive possession.

Constructive possession penalties

The penalties for constructive possession of drugs are generally the same as if you were found in physical possession of them. However, as with any drug charge, the exact penalty you receive depends on the circumstances of the crime, such as the type of drug and how much of it was discovered.

There are several possible defenses to a charge of constructive possession. Aside from showing that you had no knowledge of or control over the drugs, the drugs might have been illegally seized or your home, vehicle or property illegally searched. Examining all details of the situation is necessary to develop a solid defense strategy.

According to one recent study, between 2013 and 2021, here was a 111% rise in the number of fatal crashes involving a driver who tested positive for cannabinoids in Illinois — from 96 in 2013 to 203 in 2021. There are multiple ways to look at this data, but many policymakers are convinced it shows a serious problem.

Drugged driving vs. drunk driving

In many ways, Illinois treats drugged driving the same way it treats drunk driving. It is against the law for anyone to operate a motor vehicle if they are under the influence of any drug that has rendered them unsafe to drive. The fact that they have used the drug legally makes no difference to this determination. Penalties for even first-time offenders can include a jail sentence of up to a year and a one-year loss of driving privileges. They get much more severe for subsequent offenses.

However, measuring intoxication can be very different depending on whether the intoxicating substance is alcohol or cannabis products.

Most of us are familiar with the so-called legal limit for drunk driving: Under Illinois law, a driver has committed per se DUI if they are found to have a blood alcohol concentration of 0.08% or higher. The legal limit is lower for certain types of drivers.

Police have several ways of measuring a driver’s BAC. One of the most common is to use a chemical breath test, such as the ones sold under the brand name Breathalyzer. The reliability of these devices is questionable, and so police often try to get a blood or urine test, both of which are considered more reliable methods. However, to get these tests, the police must generally drive a suspect to a facility where a trained professional can administer the test.

Police have various other means of gathering evidence to show that a driver was drunk. They can report that the driver had alcohol on their breath or was slurring their words. They can make the driver perform simple tasks such as walking in a straight line, and then report on how they fared.

Illinois law uses a different standard for cannabis intoxication. The so-called legal limit is 5 nanograms of THC in blood or 10 nanograms in any other bodily substance. A driver found to be over this legal limit is presumed to have committed DUI. However, Illinois does not currently recognize any cannabis equivalent to the Breathalyzer device. To measure the THC in a driver’s system, they must get a trained professional to administer a more invasive type of test. However, the police generally need probable cause to believe the person has committed a crime before they can arrest the person and bring them to a facility for a test.

As a result, police officers who suspect a driver is too high to drive may rely less on scientific tests and more on their observations of the driver’s behavior.

Search warrant basics

What is a search warrant? Simply stated, it is a document in which law enforcement officials must specifically state where they are searching, what they are searching for, what they expect to find and why. And, the document must be signed by a judicial official – basically, signing off on the legality of the search warrant and the intended search.

Criminal law is filled with examples of search warrants gone wrong – from wrong addresses to improper execution of the search, and everything in between. Evaluating the search warrant, if one was involved in your case, is oftentimes one of the very first steps in the overall defense strategy. This is because, if there were violations of your constitutional rights, the entire case might be dismissed.

Every case is different, with widely differing facts involved in any given situation. And, not all drug cases involve search warrants. Building a defense case against drug crime charges is hard enough, but if there is a search warrant involved there is an extra layer that needs to be scrutinized. Be sure to get the right information about your case and how flaws in a search warrant might play a key role in your defense strategy.

The Pretrial Fairness Act, which went into effect Sept. 18 ends the practice of cash bail for pretrial release. This means that thousands of people who have been charged with a crime can be allowed to go home before their trials without having to first secure bail.

Years of criticism

The new law comes after years of criticism of the cash bail systems in Illinois and other states.

In theory, the U.S. Constitution guarantees every defendant the right to a speedy trial and holds that no one shall be deprived of their liberty without due process. However, many arrestees are kept in jail before their trial dates. In many cases, these trial dates are set for weeks or months in the future, or even longer.

In order to secure their release, these defendants must provide bail money. Some defendants do this by taking out enormous loans — often at high rates of interest. Many can’t get the loans or can’t afford to pay them back, and so they’re stuck behind bars waiting for their trials.

Critics say Illinois’ old system was unfair to defendants from disadvantaged backgrounds and was used disproportionately against people of color. There are many horror stories about people who were accused of relatively low-level crimes and had to spend months behind bars while they waited for trial. Many such defendants were eventually found not guilty and freed, but suffered irreparable harm to their personal and professional lives.

The new system

Under the new system, defendants accused of nonviolent crimes, such as many drug related crimes, can be set free before their trial dates. Those accused of violent offenses, offenses involving a gun may have to remain behind bars before trial. In these cases, a judge decides whether to keep the defendants by assessing risk factors, such as the presence of any prior convictions and the chance they might flee the state.

Illinois is one of the first states in the country to eliminate cash bail. No doubt, law enforcement, lawmakers, attorneys and many others will be watching closely to see what effects the new law will have on the state’s criminal justice system. But the immediate effect may be a huge burden off the backs of thousands of Illinois residents who have been accused of crimes.

What are target letters?

A target letter is sent from the United States Department of Justice that informs someone that they are the “target” of a potential criminal prosecution. These letters are usually sent before a federal indictment, and they give the target (the person potentially being accused of a crime) the opportunity to appear before the federal grand jury to present their own evidence or testify. However, they are not required by law, and as such, you may not get one, even if you are later indicted.

Are they used in Illinois?

Yes, but not always. In Illinois, if a drug arrest is made by a federal officer, the United States Attorney’s office (DOJ’s local prosecutorial arm) will review the case to determine whether prosecution is justified. If so, they can decide to issue a target letter to the potentially accused individual.

What do I do if I got one?

If you receive a target letter, it is important to take it seriously. However, you do not actually have to do anything and you have not been formally charged. At that point, you are not facing arrest, only the potential of a later indictment and arrest. The letter itself is just to let you know that you may face a federal civil or criminal charge. Sometimes, they are a formality, and the target is already aware of the potential charges they are facing. Other times, it is the first you hear about potential criminal charges.

Do not ignore it or throw it away. Breath. Do not panic. Contact your attorney immediately. Make sure you write down notable dates and information included in the letter, and do not destroy potential evidence.

This makes sense. Lawful permanent residents and other non-citizens who live in the Springfield area have the same rights as anyone else accused of a crime in Illinois’ courts. They are innocent until proven guilty.

However, certain types of criminal convictions can lead to deportation. The scary thing is that these rules even apply to lawful permanent residents, commonly called green-card holders. The rules apply even if a person has lived in the country since their childhood.

In the immigration courts, some criminal offenses are more serious than others. After some convictions, deportation is difficult to stop.

Other convictions might not require deportation, while immigration authorities do not even consider certain other convictions.

Sometimes, whether a conviction will serve as grounds for deportation will depend a lot on the facts and the exact nature of the criminal charges. The following are some general points:

• Other than for marijuana, it is best to assume that a drug conviction can lead to deportation.
• Most firearms offenses can lead to deportation.
• Crimes of domestic violence, even if it is a first-time misdemeanor, can lead to deportation.
• Convictions that carry possible jail sentences of 1 year, even if the person does not actually serve jail time, could put a person at risk for deportation depending on the circumstances.
• One piece of good news is that simple drunk driving conviction which involves alcohol will not usually lead to deportation.

Non-citizens need to think about immigration consequences if they are accused

When facing a criminal charge, a non-citizen should be sure they understand the possible immigration consequences of a conviction, especially if they are effectively agreeing to a conviction by pleading guilty.

Many times, it may be in a non-citizen’s best interest to mount a defense to pending charges since their future in the United States could depend on it. They can demand that the prosecutor prove their case beyond a reasonable doubt.

The line of legality regarding marijuana has been somewhat confusing as more and more states are legalizing it. For those under the impression that since Illinois legalized marijuana for recreational use in 2020, they were no longer under threat of arrest for allegations related to it, they can be sorely mistaken.

One reason why people might be arrested comes from a search after law enforcement smelled marijuana in an automobile. Recently, state lawmakers began taking steps to change that law. For this and other potential catalysts for an arrest, it is wise to be aware of how people can be protected from overzealous law enforcement, question the evidence and reach a positive result without a conviction.

Law would stop police from searching vehicles due to marijuana smell

A recent proposal would protect people from a vehicle search if a law enforcement officer simply smells marijuana. The law had required people to keep marijuana in an odor-proof container. Now, that would change if this law goes into effect.

Because marijuana is legal and people can therefore transport it, an officer smelling it is not enough to show that a crime was committed. Officers will continue to have the right to conduct a search if they believe a driver is under the influence or there is smoke emanating from the vehicle indicating it is being used at the time.

Drivers still cannot operate a vehicle while under the influence of marijuana. The Illinois State Senate passed the legislation and it will go back to the State House of Representatives where it will be analyzed further.

People should not simply accept law enforcement claims justifying searches

Any criminal allegation can cause significant problems in a person’s life. As with the new bill that would stop law enforcement officers from searching vehicles based solely on smelling marijuana, it is imperative to be aware of the pretext for which officers can make traffic stops, conduct searches and make arrests.

To effectively analyze a case and have a viable strategy for a defense, it is useful to have comprehensive help from those who are not only experienced in defending against criminal charges, but know how prosecutors go about preparing a case. Discussing the situation with those who have done both can be beneficial to the outcome.

These types of traffic stops can happen to anyone. Even though there is set to be a law that prevents officers from making stops and conducting searches based on detecting the aroma of marijuana, this is just one issue that may be used to allow a stop and an investigation that came about in violation of a person’s rights.

Contacting a former prosecutor who fights for a person’s rights can make a major difference in reducing charges, having them dropped or getting an acquittal if the case ends up at trial. Often, those who are charged have no history with the police or being arrested. They can be nervous and fearful. This might lead to mistakes and admissions just to curry favor and hope the case will go away. Unfortunately, this only makes things worse. For drug crimes or any other criminal charge, having assistance is key from the outset to try and achieve a good result.

If so, is it better to simply lock away the user and throw away the key? Or should a person who is addicted to drugs and subsequently commits a drug crime be given the chance of rehabilitation?

Drug courts in Illinois

Illinois recognizes that many people who commit drug crimes need help more than they need to be punished. For this reason, there are drug court programs that some people might qualify for, as an alternative to traditional criminal sentences.

The goal of drug court programs are to help people recover from their addiction so they can be productive members of their community.

The drug court program might be an option for those who have committed a non-violent drug crime. Being ordered to participate in the drug court program is an alternative to serving a prison sentence.

Phases of the drug court program

There are four phases to the drug court program. You cannot move on to the next phase until you have completed the one before it. The four phases are:

• Acceptance that you are an addict and need help
• Becoming stable
• Maintaining your sobriety
• Transitioning out of the program

People in the drug court program are treated for substance use. They might have to attend support groups and counseling. They might have to submit to frequent and periodic drug and alcohol testing.

People in the drug court program will be assigned a probation officer who they must report to periodically. They also might have to make periodic court appearances.

Completing the program

Once you have completed the drug court program, your probation will be terminated. Your case will be dismissed and sealed. This means your case will not appear on criminal background checks performed by the public. This is very beneficial, as it can make it easier for you to get a job, obtain housing or go back to school as you move forward into your new life.

Many people commit drug crimes out of desperation. They are caught in the trap of addiction and need help getting free. Drug court programs may help these people more than simply convicting and imprisoning them would.