Both RI and MA have separate and distinct methods of characterizing narcotic/illegal drug charges, as explained below. Actual or constructive possession is necessary for any drug charge. It is important to note that the purity (or percentage of the total) of the drug is not considered when narcotics are weighed – it is the total weight that is used by the prosecution. In other words, the total weight of the cocaine, pills, etc. is charges – not the pure weight of solely the narcotic.
In Rhode Island, criminal charges regarding illegal drugs, or controlled substances, are covered by the Rhode Island Uniform Controlled Substances Act, Chapter 21-28 of the Rhode Island General Laws. All drugs are divided into 5 different types, or SCHEDULES.
The 5 Schedules (I – V), a non-inclusive list:
-Schedule I = some opiates, hallucinogenic drugs (including MARIJUANA and peyote), depressants and stimulants, and synthetics (including of marijuana)
-Schedule II = some opiates including extracts, codeine, morphine, and oxycodone; COCAINE; simulants like amphetamines (including adderal, etc.), methamphetamines
-Schedule III = ketamine, benzphetamine (BENZOS), codeine (from therapeutic prescription drugs), steroids and hormones (Anabolic Steroids and Human Growth Hormone, or HGH)
-Schedule IV = phenobarbital, Clonazepam, Diazepam, Lorazepam
-Schedule V = codeine (larger than therapeutic dosage), Buprenorphine (SUBUTEX and SUBOXONE)
Schedules I and II are considered to be drugs with a higher potential for addiction than the other schedules. Schedules III and IV are deemed less dangerous than I and II.
Possession alone, or having an amount of a drug for one’s own personal use, has a lighter sentence than possession with intent to deliver or manufacture. By definition, possession can be “actual” or “constructive.” ACTUAL possession means that it was found on your person (such as when the arrest occurred), and CONSTRUCTIVE possession means that it was found somewhere that you have control over (like, in your bedroom after you are arrested outside your residence). Per RI law, possession means that you have intentional control over the drugs and knowledge as to the illegal nature of the drug.
The charge of delivery does not require that a hand-to-hand/ exchange-of-money transaction occurred. Delivery requires intentional control and knowledge of the drugs as well as an intent to deliver (or sell) the drugs to others. Such intent to sell can be shown by a variety of factors, such as: drugs in separate bags, baggies/Ziploc bags, scale(s), cutting agents or tools, drug ledger (a list of names and amounts), and a large amount of drugs.
Possession of marijuana was recently decriminalized in Rhode Island, except for charges of intent to deliver or manufacture. Possession of up to 1 ounce (1 oz.) of marijuana is now a CIVIL offense ( i.e. not criminal, does not go on your record), and is taken care of at the RITT (Rhode Island Traffic Tribunal). Possession of more than one ounce is a misdemeanor (only punishable by up to one year in prison). A charge including intent to deliver or manufacture still carries a high sentence like more “serious” drugs.
In Massachusetts, drug charges are covered in the Massachusetts Controlled Substances Act, chapter 94C of the Massachusetts General Laws. All drugs are divided into 5 different types, called CLASSES.
The 5 Classes (A – E), a non-inclusive list:
-Class A = Heroin, Ketamine
-Class B = COCAINE, ecstasy (MDMA, Molly), Oxycotin, amphetamines, methamphetamine, psychedelic drugs (LSD)
-Class C = Diazepam, Lorazepam
-Class D = MARIJUANA
-Class E = Codeine, Percocet, Adderal, anti-anxiety drugs, other prescription drugs
Class A drugs are considered to be those with the highest potential for abuse/addiction, and therefore tend to carry the highest sentences.
Possession alone carries a lighter sentence than possession with intent to manufacture, distribute, or dispense (delivery). By definition, possession must be knowing and intentional. Like RI, possession may be “actual” or “constructive” – the bottom line being whether you have knowledge of and intentional control over the drug, whether it be on your person or in a kitchen drawer in your apartment. The element of knowledge does NOT necessarily include knowing the exact amount or weight of the narcotics.
Proof of intent to manufacture/distribute/dispense (delivery) may be evidenced by certain factors, such as the (large) amount of drugs, individual packaging of drugs, drug paraphernalia, tools and such typically used in preparing narcotics to be sold (including scale, sifter/grinder, cutting agents), and sale(s) to undercover officer/informant.
A charge of Trafficking is the most serious and has the highest penalties/incarceration – the trafficking statute(s) include specific weights and the corresponding sentence range. Trafficking includes the activities of manufacturing, distributing, and dispensing of illegal drugs – there is no difference in the conduct that must be proved for Trafficking v. Manufacture/Distribute/Dispense charges, ONLY THE WEIGHT. For trafficking, the weight is considered an element of the crime – the prosecution MUST prove beyond a reasonable doubt that the weight of the controlled substance satisfies the statutory requirement. (Remember, knowledge of the exact weight is not necessary for this element.)
It is important to note that trafficking sentencing includes MANDATORY MINIMUMS, as in, any sentence of incarceration must be at least a certain amount of time. For non-marijuana drugs, most trafficking charges are broken up by weight amount ranges: 18 – 36grams, 36 – 100grams, 100 – 200grams, and 200+ grams. The exception is FENTANYL and its derivatives: the total weight of only 10 grams or more is considered trafficking.
Trafficking Mandatory Minimum sentences:
- Marijuana:1 year, up to 8 year minimum
- Class A: 3.5 years, up to 12 years minimum
- Class B: 2 years, up to 12 years minimum
- Fentanyl: 3.5 years minimum (for 10+ grams)
Additionally, sentences for trafficking charges are not parole-eligible until after serving ½ of the sentence! Not only that, but if any of 3 aggravating circumstances are also included, then parole is not available until the full minimum sentence is completed. These aggravating circumstances include use of a gun or weapon or selling to minors.
It is important to note that possession alone is a lesser included offense of possession with intent to manufacture/distribute/dispense. Additionally, possession with intent to manufacture/distribute/dispense is a lesser included offense of trafficking. Therefore, a conviction of the more serious charge MAY mean that the lesser charge should be dismissed. (IE double jeopardy or duplicative charges.) BUT, if separate facts and drugs weights support the separate charges, the separate charges may stand.
Possession of MORE than 1 ounce (1 oz.) of marijuana is punishable by up to 5 months in a House of Correction and/or fine of $500.