It’s illegal to possess a controlled dangerous substance (CDS) with the intent to distribute that CDS in Oklahoma. The official definition of “distribute a CDS” is to “deliver other than by administering or dispensing a controlled dangerous substance.” “Deliver” or “delivery” means the actual, constructive, or attempted transfer of a CDS from one person to another. This applies regardless of whether there’s an agency relationship.
There’s no minimum quantity of drugs required to be charged with this crime. A prosecutor isn’t required to establish that any traceable or specific usable quantity of a prohibited narcotic substance was involved. The quantity of the drug involved does not need to be sufficient to produce a stimulating or depressing effect on the nervous system. There’s no requirement that a sale occur. While a sale will certainly count as “distribution,” no money needs to be exchanged to be found guilty of this crime. Therefore, the prohibited conduct includes not only dealing and selling, but also sharing with or dividing among persons any contraband drug. The element of compensation is irrelevant. Merely giving illegal drugs to someone is enough to constitute the commission of this crime.
Possession of CDS
There must be a knowing and intentional possession of the illegal drug and the specific intent to distribute it. To prove possession, actual physical custody of a controlled substance is not required. The prosecutor merely needs to demonstrate constructive possession of the drugs. Constructive possession is both knowledge of the drug’s presence as well as the power and intent to control its use or disposition. The element of possession is established when the contraband is found on premises possessed by the defendant and under his exclusive control. Possession doesn’t have to be exclusive. Someone may be deemed to be in “joint possession” of a drug that’s in the physical custody of a companion, if the two willfully and knowingly share the right to control the drug. However, mere proximity to contraband is insufficient to establish control. Whether the prosecutor alleges sole or joint possession, evidence in addition to a defendant’s presence at a place where drugs are possessed or used must be shown to demonstrate knowledge and control.
A defendant’s knowledge and right of control may be established by circumstantial evidence. Knowledge and control of a drug can be shown through the defendant’s incriminating statements or conduct or prior police investigation. Proof of knowledge and control is insufficient when the only factor in addition to the defendant’s physical proximity to the drugs is that the drug was located in an extremely confined area (such as inside of a car). In addition to possession, the specific intent of the defendant to distribute the drugs hast to be established. The element of specific intent to distribute the drugs is a fact question for the jury. There’s various things a jury can look at to determine this such as the amount of the drugs found, the presence or sale of paraphernalia, individual packaging, and the presence of cash.
Penalty for Possession of a Controlled Dangerous Substance With Intent to Distribute in Oklahoma
This crime is a felony. The penalties are listed below.
Any Schedule I or II substance (except marijuana):
| Prison Time | Fine | |
|---|---|---|
| First Offense | Up to 7 years | Up to $100,000 |
| Second Offense | Up to 14 years | Up to $100,000 |
| Third Offense | Up to 20 years | Up to $100,000 |
Any CDS in Schedules III, IV, and V, including marijuana:
| Prison Time | Fine | |
|---|---|---|
| First Offense | Up to 5 years | Up to $20,000 |
| Second Offense | Up to 10 years | Up to $20,000 |
| Third Offense | Up to 15 years | Up to $20,000 |
Possessing With Intent to Distribute a CDS Near a School, Park, Housing Project, or Child Care Facility
Possession of a CDS with intent to distribute in, on, or within 2,000 ft of the real property comprising a public or private elementary or secondary school, public vocational school, public or private college or university, or other institution of higher education, recreation center or public park, including state parks and recreation areas, public housing project, or child care facility dramatically increases the punishment. Depending on the situation, the term of imprisonment will double or triple the punishment for distributing not near those locations.
Any Schedule I or II substance (except marijuana):
| Prison Time | Fine | |
|---|---|---|
| First Offense | Up to 14 years | Up to $200,000 |
| Second & Subsequent | Up to 42 years | Up to $300,000 |
Any CDS in Schedules III, IV, and V, including marijuana:
| Prison Time | Fine | |
|---|---|---|
| First Offense | Up to 10 years | Up to $40,000 |
| Second & Subsequent | Up to 30 years | Up to $60,000 |
Anyone convicted of a second and subsequent violation of this subsection is not eligible for a suspended sentence, deferred sentence, or probation.
Sources: 63 O.S. § 2-401 & 63 O.S. § 2-101
Current as of July 25, 2019.