Drug Trafficking Laws

Though many people believe that "drug trafficking" is synonymous with "drug dealing," trafficking includes much more than drug sales. Though state laws differ significantly, all states have laws that punish drug trafficking activity.

What is Drug Trafficking?

Someone can be convicted of drug trafficking if they manufacture, transport, sell or distribute illegal drugs. But drug possession can be a drug trafficking offense depending on the amount of drugs involved.

Drug trafficking laws set out specific amounts for various drugs that can trigger a drug trafficking charge. When someone possesses that amount or more, they could be convicted of drug trafficking even if they didn't manufacture, buy, sell, or transport the drugs.

The reason the law treats possession of large amounts of drugs as a trafficking offense is that people who have a lot of drugs usually intend to sell or distribute them; the average non-dealing drug user typically doesn't buy in bulk.

How Does the Prosecutor Prove Drug Trafficking?

Below are some of the main elements that prosecutors have to prove in drug trafficking cases.

Possession

Not surprisingly, when drug trafficking charges are based on possession, the prosecutor must prove the person possessed the drugs in question. Normally, when the police find drugs in someone's physical possession (in their hand, pocket, or purse for example), the prosecution can easily establish possession.

But sometimes, the case isn't so clear-cut. Often, the drugs will be near the person but not in their physical possession. In that situation, the prosecutor will have to show that the person had "constructive" possession of the drugs, meaning that they had the right to exercise control over the drugs.

For example, if drugs were in a dresser in someone's bedroom, this would probably be enough to establish that they constructively possessed the drugs; people typically have the exclusive right to keep things in their own dresser and are normally aware of what's in it. And even in the situation where two people share the dresser, the prosecutor might be able to establish joint possession, because both people have access to the dresser.

But the more people who have access to the location of the drugs, the more difficult it can be to establish possession. Imagine a sorority house where, after a big party, the police find a baggie of Ecstasy under a sofa cushion. In that situation, it might be more difficult to determine who owned the drugs, making possession more difficult to establish.

Sale, Manufacture, or Movement

When the charges are based on something other than possession of a certain amount of drugs, the prosecutor must prove the defendant manufactured, transported, sold, or offered to sell the prohibited drugs (or attempted to do any of these things). Importantly, someone doesn't necessarily have to possess the drugs to be guilty of these other activities. Someone who takes part in the manufacturing process or who orchestrates sales or shipments can be guilty of drug trafficking even if they never come into contact with any of the drugs.

Intent

In most circumstances, conduct isn't criminal unless it's intentional. In a drug trafficking case, the prosecution has to prove that the person intended to possess, manufacture, sell, or transport. For example, if the police find drugs in someone's backpack, it's pretty easy to show an intent to possess the drugs because people don't normally keep things in their backpacks that they don't know about. On the other hand, if someone rented a car with no idea that a kilogram of cocaine was hidden in the dashboard, they wouldn't intend to possess or transport the coke.

Amount

As noted above, most drug trafficking laws often depend upon the amount of drugs involved, though the specific amount differs depending on the type of drug. For example, a state's laws might define marijuana trafficking as possessing 25 pounds or more of marijuana or 300 pounds or more of marijuana plants. On the other hand, the same state could define cocaine trafficking as possessing 28 grams or more of cocaine.

When the charges depend on the amount of drugs, the prosecutor must prove that amount. They usually do this with the assistance of a drug lab.

Federal Drug Trafficking

While each state has its own laws on drug trafficking, the federal government also prosecutes drug trafficking offenses. Federal drug trafficking charges can arise whenever any trafficking activity crosses state lines or involves activity in more than one state.

(See 21 U.S.C. § 841 (2022).)

Drug Trafficking Penalties

Drug trafficking charges are normally felonies, and anyone convicted of these crimes can find themselves facing years in prison. Although the penalties vary widely by state, all states impose significant penalties for drug trafficking. Here are the most common ones.

• Prison. Drug trafficking convictions can result in prison sentences that last over a year, and can easily result in a sentence of 10 years or more in some states. Though less common, some types of federal drug trafficking convictions can result in a life sentence.

• Fines. The fines associated with a drug trafficking conviction can be substantial. State trafficking convictions can commonly come with fines of $25,000 to $100,000 or more. Federal drug trafficking convictions can exceed $10 million in very serious cases.

• Probation. Probation sentences are possible in some trafficking cases, but typically only as part of a plea bargain where the accused agrees to plead guilty to a less serious charge.

Drug Trafficking and First Time Offenders

Many states and the federal government have first-offender programs that allow defendants to avoid jail time for drug offenses, and even get their convictions dismissed. But these diversion programs are typically available only to people convicted of having small amounts of drugs, which usually means that trafficking offenses don't qualify. (See 18 U.S.C. § 3607 (2022).

But it's important to consult the laws of the state where the case is to know if the charges might qualify for a first-offender program. Also, depending on the facts of the case, a defendant might be able to plea bargain for a lesser charge that does fall within a first-offender program. And even when people don't qualify for a first-offender program, their lack of criminal history often factors into the judge's sentencing decision.

Talk to a Lawyer

Drug trafficking crimes are some of the more serious criminal charges you can face in any state. Because such charges often come with mandatory sentences, you need to speak to a local criminal defense attorney as soon as possible if you've been charged with or even questioned about a drug trafficking crime. An experienced attorney can evaluate the facts of your case under your state's (or the federal) drug laws. They should be able to advise you whether any defenses apply and if you should try for a plea deal or go to trial. You should never make any decisions about your case or speak to the police about it until you've consulted a criminal defense lawyer in your area.