Oklahoma drug law is modernizing. Since November of 2018, simply possessing any drug has been made a misdemeanor. Possession charges filed before the law update in November 2018 may still be prosecuted as felony charges, but all possession charges filed after November 2018 are now misdemeanors.
Many clients come to meet with us at Duncan Law and are surprised to learn that to be charged with possessing drugs, you do not have to own the substance. In fact, to prove a person is guilty of possessing drugs at trial, the prosecutor must convince the jury that the individual (1) knew that the substance existed, and (2) had the ability to exercise control over it. Keep in mind however, that simply being near CDS is not enough to be charged with possessing it. The State may charge one or more people at the same time with possessing the same substance. Unfortunately, when two individuals are charged with possessing a substance together, one person accepting the responsibility for the drugs does not automatically mean the other person’s case will be dismissed.
Many citizens are confused as to why their post-November 2018 drug charges are still felonies. Below is a breakdown of some of the main Oklahoma drug crimes that still are filed as felony charges, and why.Why is My Drug Charge a Felony?
Although simple possession in Oklahoma is now a misdemeanor, many felony drug offenses are still being vigorously prosecuted. Below are some of the drug charges we at Duncan Law see most frequently.Possession With Intent to Distribute CDS
Possession with Intent to Distribute is an extremely common felony drug charge in Oklahoma. Many people that have several containers or baggies of controlled dangerous substances (CDS) for their own personal use are being charged with this, because the State can say that the individual not only possessed the drugs for themselves, but since there is enough to share amongst two or more people, that individual must have wanted to distribute the substance (regardless of whether this is true). The key for defending these charges is putting on a defense that there truly wasn’t an intent on behalf of the drug user to share or give the substance to anyone else. In order for the State to prove Possession with Intent to Distribute under Title 63 Section 2-401 of the Oklahoma Statutes, it must show that a person (1) knowingly possessed drugs, and (2) intended to distribute those drugs. There is no weight limit for this charge, so hypothetically, a person pulled over in a car with 3 small baggies of marijuana (or any other substance) could be charged with Possession with Intent (PWI). The actual weight of the drugs is of no legal importance until a person is charged with Trafficking.Trafficking
While Possession with Intent to Distribute in Oklahoma does not have a weight limit, the charge of Trafficking does. The weight requirement to be charged with Trafficking depends on the substance. Drugs that the State considers to be more dangerous have a lower weight requirement under the law. For example, the trafficking weight requirement of Lysergic Acid Diethylamide (LSD) is only one gram. Meanwhile, the trafficking weight requirement for marijuana is twenty-five pounds. The methamphetamine weight requirement is twenty grams, and the heroin weight requirement is ten grams. To find the weight requirement for a trafficking charge of any other substance refer to Title 63 of the Oklahoma Statutes, Section 2-415, or give us a call a Duncan Law and we are happy to look it up for you.Aggravated Trafficking
Aggravated Trafficking has the same legal elements as Trafficking, the only difference in the two laws is the weight requirement of each substance. The requirement of weight is considerably higher for the charge of Aggravated Trafficking. Aggravated Trafficking is the most serious drug charge in Oklahoma and carries a severe prison penalty when charged after prior felony convictions. The punishment under the Oklahoma Trafficking statute varies depending on the type of controlled dangerous substance. The penalty for Aggravated Trafficking of methamphetamine in Oklahoma is up to twenty years in prison for a first-time offender. Aggravated Trafficking is considered a “violent” crime in that persons sentenced to serve time on Aggravated Trafficking will not be able to discharge their sentence before they serve a full 85% of their sentence.Other Felony Drug Crimes in Oklahoma
Aside from Possession with Intent to Distribute and Trafficking, there are a variety of additional ways the State of Oklahoma charges its citizens with felony drug crimes. One way that we at Duncan Law often see is, “Maintaining a Dwelling that is Used for Keeping or Selling CDS.” This charge is used when officers search a home and find it has quite a bit of controlled dangerous substances within it. Often, each person in the home gets charged with “Maintaining a Dwelling” when the drugs in that property are openly visible and accessible to those around them. The legal elements that the State must prove for this Maintaining charge are (1) Knowingly, (2) Maintaining, (3) a Dwelling/ Building/ Vehicle/ Etc. (4) Where CDS is Kept/ Sold. There is no element that the person charged with this crime own or even legally reside in the house. The “maintaining” element is met by the person charged having “control, ownership, or management” over the property—which we often see the State attempt to prove by the person having bills or mail at the residence in their name, or clothing/ hygiene items stored at the property. There are many other ways Oklahomans are charged with felony drug crime, call us at Duncan Law for a free consultation to go over the facts of the case and the laws that may apply.