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DELIVERY, DISTRIBUTION, AND SALE OF CONTROLLED SUBSTANCES
A person commits a criminal offense when he or she unlawfully delivers, distributes, or sells a controlled substance to another person. Delivery is defined as the actual or constructive transfer of the controlled substance to another person. Delivery may include selling, dispensing, giving away, or supplying the controlled substance.
Delivery of a controlled substance requires both an intent to deliver the controlled substance and a knowledge that the substance was a controlled substance.
A person also commits a criminal offense when he or she delivers a simulated controlled substance and represents that the simulated controlled substance is a controlled substance. A simulated controlled substance has different chemical properties from a controlled substance. Other chemicals may be added to the controlled substance.
An indictment or an information charging a defendant with delivery of a controlled substance must allege the elements of the offense, which elements include intent and a knowing delivery of the controlled substance. The amount of the controlled substance does not need to be alleged unless the prosecution wants to charge the defendant with more than the minimum punishment for delivery of a controlled substance. The indictment or the information must state the type of delivery that is alleged, that is, whether the delivery is actual, constructive, or an offer to sell. The indictment or the information does not need to allege the manner in which the delivery was carried out.
Where an indictment or an information charges a defendant with delivery of marihuana, the indictment or the information must specify the amount of marihuana that was delivered and whether there was payment. The reason for this allegation is that whether the offense is a misdemeanor or a felony depends upon the amount that was delivered or transferred.
In order to convict a defendant of delivery of a controlled substance, the prosecution must prove that the defendant had contact with the controlled substance. This element is normally proved by an undercover law enforcement officer. In the event that the delivery was not made to the undercover law enforcement officer, the prosecution must prove that the defendant was not merely present when the controlled substance was discovered. Although the amount of the controlled substance is a factor for showing intent to deliver, the amount is not conclusive of the intent to deliver. The prosecution must also prove that the defendant knew that he or she was delivering the controlled substance. This element is normally proved by the defendant's representation that the substance was a controlled substance and by the fact that the representation was accurate.
In order to convict a defendant of delivery of a controlled substance, the prosecution must also prove that the defendant completed a transfer of the controlled substance to another person. A completed transfer may occur even if the other person does not take possession of the controlled substance until after the defendant's arrest. The prosecution must also prove whether the delivery was actual, constructive, or an offer to sell. When the defendant is charged with actual delivery, the prosecution must prove that the defendant transferred possession and control of the substance to another person. When the defendant is charged with constructive delivery, the prosecution must prove that the defendant transferred the controlled substance to another person by some other person or by some means other than actual delivery. The defendant's mere presence at a location where the transfer is made does not constitute constructive delivery. The prosecution must prove that the defendant had control over the substance that was transferred and knew that the substance would be transferred to the other person. When the defendant is charged with an offer to sell, the prosecution must produce corroborative evidence of the offer by someone other than the person to whom the offer was made.
The punishment for the delivery, distribution, or sale of a controlled substance depends upon the amount of the controlled substance and the statutory group in which the controlled substance is found. The amount of the controlled substance includes any adulterants or dilutants that are contained in the controlled substance. Adulterants and dilutants are materials that increase the bulk or the quantity of the controlled substance. The punishment also depends upon whether the controlled substance was delivered to a minor or whether it was delivered in a drug free zone such as a school or a playground.
Copyright 2007 LexisNexis, a division of Reed Elsevier Inc.
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