Sale of a Controlled Substance: Drug Sale Laws

Drug sales or drug dealing is a crime that sometimes doesn't even involve selling drugs. Many activities can qualify as drug sales, and the penalties can vary widely depending on where the offense takes place.

By , J.D.
Updated January 25, 2023

Commonly referred to as drug dealing, the sale of a controlled substance is a crime in every state. It's also a crime under federal law. Though the laws vary in each jurisdiction, a drug sale offense is often a felony, and the consequences can be serious.

What Is a Controlled Substance?

A controlled substance is any chemical, chemical compound, or other drug or ingredient that state or federal law has restricted. While the term "controlled substances" typically refers to what most people think of as street drugs or narcotics (cocaine, heroin, methamphetamine, and so on), it can also include prescription medications and other chemical compounds.

Not all controlled substances are prohibited in all circumstances, but they are all regulated in some way. For example, physicians are legally allowed to prescribe certain types of drugs as medications, such as valium and morphine. But those drugs are still controlled, meaning the law restricts who can prescribe, use, possess, manufacture, and transport them.

Sale of a Controlled Substance

In some situations, you can be convicted for the sale of a controlled substance even if you didn't actually sell drugs to somebody.

Selling a controlled substance includes things like bartering, giving away, distributing, delivering, exchanging, or even offering to perform any of those activities. This means that you can be convicted of this crime even if no transaction ever takes place. Further, courts have held that just bringing someone to meet another person so they can do a drug deal is enough for a conviction.

Can You Sell Legal Drugs?

In many situations, someone can be convicted of selling a controlled substance even though the drugs aren't illegal per se. For example, pharmacists have a license to legally dispense controlled prescription drugs. If a pharmacist sells such a drug outside of the law (say, to someone without a prescription), this too is an illegal sale of a controlled substance.

Also, if someone sells their own medication to someone else, that's an illegal sale. Even though the seller is legally allowed to possess and use the prescribed medication, it's illegal to sell it or give it to others.

Drug Dealing vs. Drug Trafficking

There's a close relationship between drug dealing and drug trafficking. The definition of drug trafficking varies depending on the jurisdiction, but it often includes a wide range of drug-related crimes, selling, possession with intent to sell, transporting, manufacturing, and so on.

In some states, drug possession offenses are considered drug trafficking crimes when they involve larger amounts of drugs. For example, when someone possesses more than the limit established under their state's drug trafficking law, they can be charged with trafficking even if they didn't sell or transport any drugs. This is because the law presumes that someone who possesses a lot of a drug isn't just using it; they're probably involved in selling it.

Also, a person can be charged with federal drug trafficking for many crimes that are prosecuted in state court. But federal law enforcement tends to focus on larger-scale, multi-state operations.

For more information on drug trafficking, see our article on drug trafficking laws.

Penalties for Drug Dealing

The sale of a controlled substance is often a felony but can sometimes be a misdemeanor. The punishment will depend on how serious the offense is, the law the person is charged under, and whether certain factors make the defendant more blameworthy.

Severity of the Crime

Not surprisingly, punishment for drug sales is usually more severe when the circumstances of the crime make it more serious. Selling prescriptions without a license, or conducting a small hand-to-hand sale are typically less serious than dealing in kilos of cocaine, for example. Here are some common factors that can increase the seriousness of a drug sale offense:

  • Type of drug. Some drugs, like heroin and methamphetamine, for example, are considered more dangerous than, say, marijuana (which is now legal in many states in certain quantities). Drug offenses involving dangerous drugs are often punished more harshly.
  • Quantity. Most states and the federal government increase the penalty for drug sales when large amounts of drugs are involved.
  • Use of a gun. When someone uses a gun during a drug offense they can face much stiffer penalties. Even just keeping a gun in your pocket or nearby for protection during a drug deal can be enough to receive a higher sentence.
  • Sale to minors. Selling drugs to minors (or enlisting minors to sell drugs) can also be punished more harshly.
  • Prior offenses. Someone with prior drug convictions (or even other types of offenses) could face longer sentences in federal and many state courts.

Prison, Jail, and Other Possible Sentences

Depending on the severity of the offense and whether it's charged in state or federal court, a single drug sales conviction can result in any number of possible penalties. Here are a few of the sentencing possibilities in drug sale cases:

  • Incarceration. Misdemeanor convictions have potential jail sentences of up to a year. Felonies can result in prison time—anywhere from one year to several years depending on the facts (and even life for some very serious federal drug crimes).
  • Probation. People convicted of less serious drug sale offenses might be able to get probation instead of, or in addition to, some time behind bars. A probation term usually lasts a minimum of 12 months, but is often anywhere from two to five years.
  • Fines. Judges usually impose criminal fines in addition to (and sometimes instead of) time behind bars. The fines vary significantly from state to state, and tend to be highest in federal cases.

Consult with Criminal Defense Attorney

If you've been charged with a crime or think you're under investigation, you should speak to a criminal defense attorney as soon as possible. A local attorney will probably know the prosecutors, judges, and some of the officers where your case is, and can give you an idea of how the case will proceed. An experienced lawyer should be familiar with the laws and legal issues that drug cases involve. And a good lawyer can advise you whether to speak to the police (most lawyers strongly advise against this), consider a plea deal, or go to trial.

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