Intent to Distribute

The crime of possession of a controlled substance with intent to distribute is a second-degree felony under Utah Code Ann. §§ 58-37-8(1)(a)(iii). In Utah, the crime of possession with the intent to distribute a controlled substance is punishable in the same manner as a charge of drug distribution.

A conviction requires proof beyond a reasonable doubt that you knowingly and intentionally "possessed" the drug in question. If you were merely present at the place where the controlled substance was found, then that fact alone is insufficient to prove that you were in possession of a controlled substance.

The charge also requires proof that you possessed the drugs with the intent to distribute them to another. The type of evidence that shows an intent to distribute the drugs can include:

  • the statements that the defendant makes that he or she intended to distribute the drugs to another person;
  • the amount of drugs possessed are more than typically possessed for personal consumption;
  • the way the drugs were packaged (being divided up into several small baggies);
  • the possession of paraphernalia used to sell drugs such as scales; or
  • the possession of a large amount of cash.

Your criminal defense attorney must show all of the reasons why there was not a sufficient nexus between you and the drugs to permit a factual inference that you had the power and the intent to exercise control over the drugs or paraphernalia. 

Alternatively, your attorney attempts to show that the accused's possession was only for personal consumption and not with the intention to distribute or sell the drugs to another person.

Attorneys for Drug Distribution Crimes in Salt Lake City, Utah

If you were charged with possession of a controlled substance with intent to distribute, a second-degree felony, in violation of Utah Code Ann. § 58–37–8, then contact an experienced criminal defense attorney at Brown, Bradshaw & Moffat, LLP. 

Our attorneys are experienced in fighting a wide range of drug crimes cases from simple possession to drug trafficking. Let us put our experience to work for you. 

Call us at (801) 532-5297 today.


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Elements of Possession with Intent to Distribute

The crime of Possession of a Controlled Substance with Intent to Distribute requires proof beyond a reasonable doubt of each of the following elements:

  1. the defendant intentionally and knowingly possessed a controlled substance;
  2. the defendant was in actual or constructive possession of the substance;
  3. the substance is a controlled substance under schedule I - IV; and
  4. the defendant possessed a substance with the intent to distribute that substance. 

To prove that the accused had constructive possession, the prosecution must provide that there is a sufficient nexus between you and the drug to permit an inference that you had both the power and the intent to exercise dominion and control over the drug. In other words, there must be facts which show that you intended to use the drugs or paraphernalia as your own.

The existence of a sufficient nexus to prove constructive possession is a highly fact-sensitive determination. The court will consider a host of factors to determine whether constructive possession has been proven. While the list of factors are helpful in determining whether constructive possession can be proven, the list is not exhaustive.


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Penalties for Possession with Intent to Distribute in Utah

The penalties for crimes related to the possession of controlled substance with the intention to distribute the drugs to another person depend on a variety of factors including the type of drug possessed, whether a firearm was used in connection with the possession, and the location where the possession occurred.

For marijuana, in particular, possession with intent to distribute any amount is charged as a third-degree felony under Utah Statute 58-37-8(1)(a)(iii). A second offense is charged as a second-degree felony. 

In addition, the penalties for possession with the intent to distribute marijuana may be subject to enhanced penalties. When a person commits the crime in a Drug-Free Zone, it is elevated to a second-degree felony. Possession with intent to distribute charges also become more severe if the defendant was in possession of a firearm during the commission of the offense.

The statutory maximum penalties for possession with intent to distribute marijuana and other non-schedule I or schedule II drugs in Utah include:

  • for a first-degree felony the penalty is 0-5 years in prison and a fine of up to $5,000;
  • for a second-degree felony the penalty is 1-15 years in prison and a fine of up to $10,000; and 
  • for a first degree felony, the penalty is 5 years to life in prison and a fine of up to $10,000.

For drugs classified as a Schedule I or Schedule II substance, possession with intent to distribute is charged as a second-degree felony. These penalties apply to controlled substances such as opium, cocaine, heroin, LSD, and methamphetamines. For a second offense, the crime is classified as a first-degree felony.

If the drug in question is not included in the schedules above, like hydrocodone, ketamine, codeine, and other prescriptions, the accused could be charged with a third-degree felony, carrying penalties up to five years in prison and $5,000 in fines. 

Again, prior similar convictions can be elevated to a second-degree felony, with a potential sentence up to 15 years and $10,000 in fines.

Other penalties that apply if a person is convicted of possession with the intent to distribute include Utah driver’s license suspension. A drug conviction will also disqualify the accused from some types of federal student aid or housing options.


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Firearm Enhancement for Drug Distribution Crimes in Utah

If it is determined beyond a reasonable doubt that you committed the crime of Distribution of a Controlled Substance or Possession of a Controlled Substance with Intent to Distribute, the jury will also be asked to decide whether you used a firearm during the commission of that crime.

To find that you used a firearm during the commission of the crime, the jury must find, beyond a reasonable doubt each of the following elements:

  1. the defendant acted intentionally, knowingly, or recklessly:
  2. the defendant used, carried or possessed a firearm;
  3. the firearm was on the defendant's person or in his or her immediate possession;
  4. the defendant's possession was during the commission of or in furtherance of the crime of distributing a controlled substance or possessing a controlled substance with the intent distribute.

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Enhanced Penalties for Drug Cases

Enhanced penalties apply in drug cases in Utah if any of the following circumstances are proven beyond a reasonable doubt:

  • in, on the grounds of, or within 100 feet of any structure, facility, or grounds of a public or private elementary or secondary school, or vocational school or postsecondary institution between 6 a.m. and 10 p.m.;
  • in, on the grounds of, or within 100 feet of any structure, facility, or grounds of a preschool or child-care facility during the preschool's or facility's hours of operation;
  • in or within 100 feet of any structure, facility, or grounds of a public park, amusement park, arcade, or recreation center when the public park, amusement park, arcade, or recreation center is open to the public;
  • in, on the grounds of, or within 100 feet of any structure, facility, or grounds of a house of worship (church); or
  • in, on the grounds of, or within 100 feet of any structure, facility, or grounds of a library when the library is open to the public.

For purposes of the enhanced penalties based on the location of the offense, Utah law also provides that the defendant's belief or ignorance about whether the location was one of the locations identified above is not a defense.

Under Utah's drug-free zone statute, a crime that would normally be classified as a second-degree felony would become a first-degree felony punishable by up to life in prison. Likewise, the possession of marijuana with the intent to distribute is enhanced from a third-degree felony to a second-degree felony.

Enhanced penalties can also be imposed if the crime was committed in the presence of a person younger than 18 years of age, regardless of where the act occurs. For these enhanced penalties, the defendant's belief or ignorance about the person's age is not a defense.

Utah law also imposed enhanced penalties for drug crimes committed for the purpose of facilitating, arranging, or causing the transport, delivery, or distribution of a controlled or counterfeit substance to an inmate or on the grounds of any correctional facility.

Under Utah Code § 76-8-311.3, the term "correctional facility" means:

  • any facility operated by or contracting with the Department of Corrections to house offenders in either a secure or nonsecure setting;
  • any facility operated by a municipality or a county to house or detain criminal offenders;
  • any juvenile detention facility; and
  • any building or grounds appurtenant to the facility or lands granted to the state, municipality, or county for use as a correctional facility.

Under Utah Code § 76-10-501, the term "firearm" means a pistol, revolver, shotgun, short barreled shotgun, rifle or short barreled rifle, or a device that could be used as a dangerous weapon from which is expelled a projectile by action of an explosive.


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Finding a Lawyer for Drug Distribution Crimes in Utah

To show constructive possession, the State must prove beyond a reasonable doubt that the drugs were subject to your dominion and control and the defendant had the intent to exercise that control. Talk with an experienced criminal defense attorney in Salt Lake City, Utah, about the specific facts of your case.

At Brown, Bradshaw & Moffat, LLP, our experience drug defense attorneys can help you with asserting an aggressive defense at each stage of the case. Call (801) 532-5297 today.


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