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Carl Barkemeyer wrote the book on How to Defend Drug Charges in Louisiana.  Download your free copy to learn more about the criminal process and drug defenses in Louisiana.

 

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For a long time, the state of Louisiana has fought against drug crimes. This has made the state enact a lot of stringent rules to prevent the violation of drug crimes. The sales, production, and possession of these illegal substances are prohibited. It is illegal to be caught selling, buying, distributing, producing or possessing illegal substances such as ecstasy, meth, heroin, and cocaine.

 

Manufacture. Distribution of Schedule 1 under RS 40:966

It doesn't matter if you are caught in possession of a drug in this schedule, and nothing more, the officer will mostly have your charge written as Manufacture. Distribution of Schedule 1 under RS 40:966. La. Rev. Stat. Ann. § 40:966 is the law that governs the possession with intent, manufacturing, growing, and distribution of illegal substances in this schedule. To be charged under this statute if you only possessed a drug, the amount must be large enough to be considered possession with intent to distribute.

You may become scared when the charge is written out, be calm. You will be tried under the law guiding this schedule, but it will be restricted to the particular crime are charged with.

 Illicit substances under this schedule are tetrahydrocannabinols, marijuana, and derivatives. It is illegal to create, distribute or possess any illegal substance in this schedule.

There is an exception to this law, which is possessing medical marijuana as long as you have a prescription. This is under the La. Rev. Stat. Ann. § 40:966.

You violate this law if you are:

1. Trying to create, produce or distribute illicit substances under schedule I.

2. Trying to manufacture or possess those drugs under schedule I with intent to distribute.

3. Trying to grow whatever strain of hemp.

This is under section A of this schedule.

Violation of the drug law leads to at least a year in jail to ten years or a fine of at most of fifty thousand dollars. This is when the weight is less than twenty-eight grams.

If it is more than twenty-eight grams, it could be at least a year or at most twenty years in jail. The fine is at most fifty thousand dollars.

 

Manufacture. Distribution of Schedule 2 under RS 40:967

Like above, if you are caught with drugs that are in schedule 2, whether it is possession with intent to distribute, distribution, or manufacturing, the officer will write out, ‘Manufacture. Distribution of Schedule 2 under RS 40:967' while writing your crime. Do not worry. You will be charged based on the drug crime that you are facing.

1. Trying to create, produce or distribute illicit substances like amphetamine or methamphetamine under schedule II 

2. Trying to manufacture or possess those drugs like cocaine and oxycodone under schedule II with intent to distribute.

 

Penalties for violating the possession of drugs in schedule II

Possessing less than two grams of drugs in schedule II could least to at most two years in jail or a fine of at most five thousand dollars.

Possessing from two grams to twenty-eight grams could lead from a year to five years in jail. It could be a fine of at most five thousand dollars.

            

Penalties for violating the production of drugs in schedule II

Violation of the tenets under the schedule leads to from one year to ten years in jail or a fine of at most of fifty thousand dollars. This is when the weight is less than twenty-eight grams.

If it is more than twenty-eight grams, it could be from a year to twenty years in jail. The fine is at most fifty thousand dollars.

For trying to manufacture amphetamine or methamphetamine, it could lead to at least ten years to thirty years.

 

Manufacture. Distribution of Schedule 3 under RS 40:968

It does not matter if you were caught in possession, distributing or manufacturing illicit drugs, the officer is expected to write your charge with, 'Manufacture. Distribution of Schedule 3 under RS 40:968'. This is because possessing, distribution, growing or manufacturing of the drugs in this schedule falls under the (La. Rev. Stat. Ann. § 40:968 (2019). Not to worry, you will be charged or sentenced- if found guilty- based on the crime that you allegedly committed.

With each schedule, the penalties usually reduce. This is because they are not as addictive nor as dangerous as those above. You can be charged if you are caught:

1. Trying to create, produce or distribute illicit substances under schedule III.

2. Trying to manufacture or possess those drugs under schedule III with intent to distribute.

 

Penalties for violating the possession of drugs in schedule III

Using a substance in schedule II without prescription violates R.S. 40:968 or R.S. 40:1239. If could lead to at most five years in jail or a fine of at most five thousand dollars.

 

Penalties for violating the production of drugs in schedule III

Violation of the tenets under the schedule lead to not more than ten years in jail or a fine of at most fifteen thousand dollars.

 

Manufacture. Distribution of Schedule 4 under RS 40:969

If you are arrested for producing, growing, distributing or possessing with intent to distribute drugs in schedule 4, you will have, 'Manufacture. Distribution of Schedule 4 under RS 40:969' written out in your charge like the others above. You can be charged if you are caught:

Violation of subsection A leads to:

A prison term of at least five years to thirty years. The fine is at most fifty years if it is Flunitrazepam. Other substances in Schedule IV have a sentence of at most ten years or a fine of at most fifteen thousand dollars.

This is under the La. Rev. Stat. Ann. § 40:969 (2019).

 

Penalties for Possession

If the said person doesn't have a prescription for Flunitrazepam, he or she can be sentenced to at most ten years or a fine of at most five thousand dollars.

Possessing other substances will lead to a sentence of at most five years in jail or a fine at most five thousand dollars.

 

Manufacture. Distribution of Schedule 5 under RS 40:970

If you are arrested for producing, growing, distributing or possessing drugs in schedule 5, you will have, Manufacture. Distribution of Schedule 5 under RS 40:970 written on your booking sheet.  You will be tried based on the tenets of La. Rev. Stat. Ann. § 40:970 (2019). There are penalties meant for drug possession, which are different from the penalties of the manufacturing of drugs under this schedule.

The fact that you have Manufacture. Distribution of Schedule 5 under RS 40:970 written on your charge when you committed drug possession doesn't mean that you may face penalties of manufacturing of drugs. There are different penalties for different drug crimes.

You violate the rules of drugs in schedule V, if you are caught:

1. Trying to create, produce or distribute illicit substances under schedule V.

2. Trying to manufacture or possess those drugs under schedule V with intent to distribute.

Violation of subsection A leads to a prison term of at most five years or a fine of at most five thousand dollars.

Violating possession rule can lead to at most five years in jail and at most five thousand dollars.

 

Differences Between A Legal Drug and An Illegal One

A drug that is legal in a situation may be illegal in another situation. What situation the drug is used for matters.

Medicinal marijuana can be used in treating pain, but when someone without a prescription is caught with it, it is seen as illegal. Amphetamines are normally used in the treatment of anxiety, but when it is caught being used for something else, it is illegal.

It is illegal to have prescription drugs when you do not have a prescription for such drugs. It is wrong to be caught selling such prescription drugs when you are not registered with the authorities like DEA.

Sending prescription drugs across state lines when you are not registered with the authorities like DEA is illegal. It does not matter if you have prescriptions or not. The only time that you are allowed to send drugs in the mail is when there was an error in dispensing. It could also occur when there was a recall of the drug or the government is holding a callback program.

The truth remains that using these prescription drugs without supervision can lead to a serious issue.

 

What Are The Different Levels of Drug Laws?

There is a great chance that you may have heard that Federal, State, and Local Drug Laws exist.

For a long time, the federal government has fought against drug abuse and its distribution. This can be seen in the federal laws that it has created. This has not stopped states and regions from creating state laws and local laws.

Most times, drug trafficking cases are handled by the federal arm, while the drug possession cases are left for the local and state arms.

Usually, a large aspect of the cases handled by the state and local arms is marijuana possession. This is not different in the state of Louisiana.

There is another disparity between both laws. The state laws are usually not as strict as then federal laws.

If you are facing federal drug charges, there is a great chance that you will face stricter penalties than when it is a state drug charge.

Like earlier mentioned, a lot of state arrests are based on possessions which, in most cases, are misdemeanor. The penalties may be a stint in prison, probation, as well as a fine. The penalty is dependent on the conditions surrounding the case.

 

Common Terms in Drug Cases

Usually, when someone is arrested for drug crimes under a schedule like a schedule 2, this is what the officer may write, "Manufacture. Distribution of Schedule 2 under RS 40:967.” This usually confuses many people, especially when it was an only drug possession case that they were arrested for. We would talk more about the different schedules later.

 

What Does Controlled Substance Mean?

When the government has declared that a drug is controlled, what does it mean? This means that producing, distributing and using the drugs are regulated highly by the government. In the case of prescription drugs, only those that have prescriptions are allowed to use it within the tenets of the prescription.

Every controlled substance usually falls under different schedules from Schedule I to Schedule V.

Let's say that you are caught with marijuana, you will be prosecuted under the Manufacture. Distribution of Schedule 1 - RS 40:966. It doesn't matter if you are being charged with simple marijuana possession.

If you are caught with cocaine, you will be prosecuted under the Manufacture. Distribution of Schedule 2 - RS 40:967, since it falls under schedule 2. It doesn't matter if it is a mere cocaine possession, and there was no intent to sell or even produce, this is how you charge may be written out by the police.

In the case of anabolic steroids, it is under Schedule III, meaning that if you are caught possessing it, you will be charged based on Manufacture. Distribution of Schedule 3- RS 40:968.

This happens for other controlled substances that are under the other schedules.

 

What Does Distribution and Trafficking Mean?

If you are arrested and you are charged with drug distribution, it means that the said person was caught trying to sell those illegal substances. They could also be caught trying to deliver them.

Let's say that you were caught trying to sell or deliver drugs to an undercover cop or agent, you could be charged for drug distribution.

On the other hand, drug trafficking doesn't necessarily mean that the drugs have been taken through different states. Here, it means that the drug quantity is above the required limit. If the drugs are above a stated limited by the law, it is classified as drug trafficking.

Usually, the consequences of this crime are dependent on some factors:

1. The quantity of the illegal drugs that you were found with and what kind of drug it is.

2. Where the accused was found. Was it close to a school?

3. The criminal history of the accused. Is it a first-time offense? Or a repeat offender?

Usually, if it is a first-time offense, you could spend up to three years in jail or pay a large amount as fine. Sometimes, it is both. 

 

What Does Drug Manufacturing Mean?

Usually, when a person is caught producing or growing an illicit substance, the person can be charged under the state and federal laws. When someone is charged with manufacturing, it could be that the person was found involved in the cultivation of illicit drugs.

In this case, cultivation means that the said person was involved in growing or producing those ingredients needed in making these drugs. It doesn't matter if you are not the one that is producing the main drug, the fact that you grew the ingredients of the drug could have you charged with a drug crime. 

In the case of marijuana crimes, you don't have to be the one selling the marijuana before you can be charged with a drug crime.

If the defendant is seen growing marijuana plants, cannabis seeds, and so on, the person can be charged with "Manufacture. Distribution of Schedule 2 under RS 40:966.”

In the case of cocaine, LSD, and so on, if you are caught with substances needed in making them, you can be charged with a drug crime too.

 

What Does Drug Possession Mean?

Usually, drug possession forms a large part of drug arrests within a state like Louisiana.

Before a person can be found guilty of a drug possession crime in Louisiana, the prosecutor should prove some conditions beyond a reasonable doubt.

The defendant possessed the illegal drugs wittingly. The defendant was aware of the existence of the drugs and carried them intentionally. 

The defendant didn't have a prescription for the said drugs. It is illegal to have prescription drugs without having the necessary prescription. 

 

It Could Be Constructive Or Actual Possession

When you are charged with drug possession, it can fall under constructive possession or actual possession.

In the case of actual possession, the said illicit drugs were found on your person. You were caught trying to sell the product to someone else. It could be you were whisked for a tangible reason, and the said drugs were found on you.

It could be that you were driving and the drugs were found in plain sight in your car. This is actual possession.

In the case of constructive possession, the drug was not found on your person, but you have control over what happens to the drugs. Let's say that your house was searched, and drugs were found in a corner of the house, this is constructive possession.

It could be that the drugs were found on someone else, but you have control over the drugs on that person.

It is important to note that one can be charged with drug possession without the person using the said drug. In cases like driving under the influence of alcohol or drugs, the prosecutor has to prove beyond a reasonable doubt that the defendant actually used the said drugs or alcohol while driving. This doesn't happen in drug possession crimes.

As long as the illegal substance was found in the car, no one wants to know whether you used it or not before they can charge you for drug possession. It is only when it is a Driving Under the Influence case that such may be considered.

If you are caught with drug paraphernalia that has been linked with drug use like scales, syringes and so on, you could be charged for a drug crime. It doesn't matter if you were caught with the drugs, you could be charged. To seal the deal, the drug paraphernalia should have remnants of the drugs there.

Usually, when you are charged with drug cases, it normally begins with drug possession, before it moves to something more. Let's say that your home was searched, and marijuana was found there. It could start with drug possession charges. If after a while, the marijuana is weighed and it goes beyond the limit in the law, the said person can be charged with trafficking. If it is found that the person has cultivation tools, it could lead to a drug manufacturing charge. If the said person distributes the drugs, it could lead to s drug distribution charge.

Usually, when a charge of simple drug possession is brought up, the penalties are usually lighter than when a charge of possession with an intent to distribute is brought up against someone.

A simple possession of marijuana may be treated as a misdemeanor, while possession with intent to distribute may be treated as a felony charge. 

 

What Does Diversion Mean?

If you are conversant with drug laws, you may have heard of diversion. This is meant normally for those that are first-time offenders. 

When you undergo a diversion program, you end up keeping a clean record. In this case, the defendant pleads guilty to the charge. As part of the diversion program,

you are expected to undergo a substance abuse program. You are also expected to not carry out any other offense or you could be arrested.

The diversionary program usually lasts for at least eighteen months. Sometimes, the period can be more. Once you are done, the case is then dismissed by the state. At this moment, you have no conviction record, and you are allowed to file a motion to expunge your arrest.

 

Are Search and Seizure Allowed?

Under the laws, search and seizure are allowed. Officers are allowed to search and seize drugs and illegal substances, as long as the process follows the law.

In some cases, this is not what happens. Since officers climb up the ladder based on how many drug cases that they have closed, some tend to be overzealous.

Criminal defense attorneys use this to their advantage. They could state that the said officer overstepped his rights in the search and seizure laws. In other to protect the rights of citizens, the Fourth Amendment was made.

If it can be proven that the Fourth Amendment rights of the defendant had been violated, whatever evidence that was gathered then may be thrown out of the court

 

Contact Carl Barkemeyer Immediately

If you have been arrested for any drug crime, contact your Louisiana drug charge lawyer, Carl Barkemeyer to represent you.

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