Many innocent people in Las Vegas get wrongly arrested, charged, convicted and jailed for the crime of possession of marijuana with intent to distribute in Nevada. In this article, our Las Vegas criminal defense lawyers will discuss:
- the definition of marijuana possession for the purpose of sale under Las Vegas, Nevada law;
- the defenses that may help you fight a charge of marijuana possession for the purpose of sale; and
- the penalties that Clark County courts may impose upon a conviction for marijuana possession for the purpose of sale.
(1) The definition of “marijuana possession for the purpose of sale” in Las Vegas, NV.
Under Nevada marijuana law, you can be convicted of “possession of marijuana for sale” only if the prosecution proves two things:
(a) you were in possession of some quantity of marijuana, and
(b) that you intended to sell the marijuana.
In order to prove the first part, possession, the prosecution will try to show that the marijuana was in your control. This means that the marijuana was found on your person, or in your car, or in your home, or in some other place that you exercised control over.
To determine the second part, intent, Las Vegas courts look at the circumstances surrounding the alleged pot possession. Nevada prosecutors typically point to several factors in arguing that a defendant possessed marijuana for sale, and some of these can be rather far-reaching. For example:
- If the amount of marijuana seized is large: Nevada marijuana prosecutors will argue that a suspect possessing a large amount of pot is a smoking gun for an imminent sale. Their reasoning is that someone who smokes pot for solely personal use would probably possess only a small quantity of pot at any one time. This is a pretty hare-brained argument since it is just as likely that someone would “stock up” on large quantities of marijuana for personal use in the same way people stock up on soda or water from Sam’s Club.
- If the marijuana is stored in separate bags or containers, especially if they are evenly measured: The prosecution will argue that marijuana divided into packages of pre-measured amounts indicate an intent to sell. Their reasoning is that someone who possesses pot purely for recreational purposes would not have the need to organize their personal stash with any sort of precision and would probably store it all in a single container. Again, this is a baseless argument: A suspect could have bought all those pre-measured bags of pot for personal use and just had not used them yet. Or maybe the suspect just likes to keep his marijuana very organized.
- If the suspect is found with a lot of cash, especially small bills: If suspects are found with a lot of cash on their person or in their car or in their home, the Nevada marijuana prosecutors may try to argue that the cash is an indicator that they have sold pot in the past and were going to continue selling it. To the prosecution, a few large bills raises less suspicion than a lot of small bills, because a lot of small bills would naturally result from a lot of small pot sales.
- If the suspect is found in a location where drug deals typically happen: If suspects are arrested in a place where many pot buyers and sellers go to do business, the prosecution will argue that their presence in such a place indicates that they were intending to sell. This argument is spurious because their presence in such a location could just as easily mean that they were in the location looking to buy weed, or that they were there purely to socialize with other pot users.
- If the suspect is found carrying a weapon: If the suspect is armed, the prosecution may argue that he was carrying the weapon to defend himself in case the drug deal went wrong. But the suspect could have merely been exercising his constitutional right to bear arms.
- If law enforcement witnesses the suspect carrying out what seems to be a hand-to-hand sale: In Las Vegas, cops often go undercover or hide themselves at observation posts in the hopes of witnessing a drug sale. Sometimes they will arrest a suspect after witnessing one alleged sale transaction, or they will observe a suspect for an extended time before arresting him/her. This evidence too cuts both ways: If an apparent transaction took place, the suspect could just as easily have been the buyer as the seller.
- If the suspect is not high and/or has no paraphernalia at the time of arrest: If the suspect is not high nor has any bongs, pipes or papers at the time of arrest, the prosecution may argue that the suspect could not possibly have had the pot for personal use and therefore had it only for the purpose of sale. This argument also lacks merit. Many pot users are not high all the time, nor do they all have paraphernalia with them all the time. But when trying to prove possession for the purpose of sale, the prosecution will try to turn a suspect’s sobriety or lack of paraphernalia against him/her.
(2) Defenses for “marijuana possession for the purpose of sale” in Las Vegas, NV.
What defenses a Las Vegas marijuana attorney may use to fight a charge of possession for sale of marijuana depend upon the facts of your case. The following are some common defenses we have found effective in Nevada:
The marijuana did not really belong to you:
A judge cannot find you guilty of “possession for sale of marijuana” if there was no possession. Therefore, a Nevada marijuana attorney may try to show that the pot did not belong to you. An attorney may argue that the pot was located in a location that was not under your control, or that you did not know the marijuana was there. If you can show there was no possession, your charge will likely be dismissed.
You had no intent to sell marijuana:
Similarly, a judge cannot find you guilty of “possession for sale of marijuana” if there was no intent to sell. Therefore, a Nevada marijuana attorney may try to show that although you may have possessed some marijuana, you intended it solely for your personal use. If you can show there was no intent to sell, your charge will liked be reduced to simple possession, which has more lenient penalties.
The police violated your rights when they seized the marijuana:
The Fourth Amendment of the U.S. Constitution outlines strict rules for searches and seizures that the police have to follow. If you can show that the police conducted an illegal search in order to obtain the marijuana, you may be able to get the entire case dismissed purely on constitutional grounds.
(3) Penalties for marijuana possession for the purpose of sale in Las Vegas, NV.
If you are convicted of possession of marijuana for the purpose of sale in Nevada, penalties intensify with each successive conviction:
A first offense for possession of marijuana for the purpose of sale is a category D felony in Nevada. The court may grant probation or suspend your sentence. Otherwise, you may face one to four years at Nevada State Prison, and you may be fined up to $20,000.
A second offense of possession of marijuana for the purpose of sale is a category C felony in Nevada. (However, a first offense of possession of marijuana for the purpose of sale if you have also previously been convicted of breaking any felony drug law in the United States is a category C felony as well.) You may face imprisonment of one to five years and a $10,000. The court may not grant probation or suspend your sentence.
A third or subsequent offense of possession of marijuana for the purpose of sale is a category B felony in Nevada. (However, a first offense of possession of marijuana for the purpose of sale if you have also previously been convicted twice of breaking any felony drug law in the United States is a category B felony as well.) You may face imprisonment of three to fifteen years, and you may be fined up to $20,000. The court may not grant probation or suspend your sentence. (NRS 193.130)
However, if the marijuana involved weighs in at one hundred pounds (100 lbs.) or more, then Nevada’s harsher trafficking laws may apply.
Marijuana possession with intent to sell is a deportable offense for aliens, so non-citizens charged with any drug crimes must hire an attorney right away to try to plead down the case to a non-removable crime. Read more about deportable crimes in Nevada here.