Massachusetts G.L.c. 94C, § 32: Class A Controlled Substance Offenses Involving Distribution and Possession with Intent to Distribute

Massachusetts General Laws Chapter 94C, section 32 governs crimes involving Class A controlled substance offenses involving distribution and possession with intent to distribute. It provides as follows:

Any person who knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense a controlled substance in Class A of section thirty-one shall be punished by imprisonment in the state prison for not more than ten years or in a jail or house of correction for not more than two and one-half years or by a fine of not less than one thousand nor more than ten thousand dollars, or by both such fine and imprisonment.

Heroin is a Class A substance, as is fentanyl. In order to convict a defendant of distribution or possession with intent to distribute heroin, fentanyl or any other Class A substance, the government must prove the following elements beyond a reasonable doubt:

1. The substance was a Class A substance. Again, when defendants are charged with distribution or possession with intent to distribute a Class A substance, the charges usually involve heroin, and more recently may involve fentanyl. In determining whether the substance was the particular Class A substance in question, the factfinder may consider all evidence, including witness testimony.
2. The defendant distributed the substance in a perceptible amount to another person or persons or the defendant possessed a perceptible amount of the substance with the intent to distribute it. “Distribute” means to deliver the substance, regardless of whether or not money was involved or exchanged.
3. The defendant acted knowingly or intentionally. This means consciously, voluntarily, and purposely. It is not enough that the defendant acted by accident or mistake or through negligence.

Where a defendant is charged with manufacturing or dispensing a Class A substance, one can find the definitions of “manufacture” and “dispense” in General Laws chapter 94C, section 1.

If a defendant is charged with possession with intent to distribute a Class A substance, several factors are to be considered. While it is well settled that "[e]ach instance of prosecution for possession with the necessary intent has its own singularities, which makes precedent a somewhat imperfect guide,” there are a number of indicia that have been considered in the assessment of the intent to distribute. These include the possession of large quantities of the contraband, the manner in which the narcotics are packaged, the presence of paraphernalia commonly used in the distribution of narcotics such as dilutants, scales, or glassine bags or other packaging materials, and the presence of cash in combination with multiple cell phones or other accoutrements of the drug trade that are found on a defendant's person. Furthermore, when the presence of large amounts of cash is used to support intent to distribute, a complicating factor is if the money is in all small bills or bunched in the denominations in which the narcotic is normally sold.

Charges of heroin or fentanyl distribution commonly arise from controlled purchases from informants or from sales to undercover police officers. Charges of possession with intent to distribute heroin or fentanyl are often more ambiguous. For instance, if a user recently purchased several baggies of heroin for personal use and then gets searched by police, he or she could, and likely would, still be charged with possession with intent, based on the quantity of individual baggies. In that situation, a skilled criminal defense lawyer would negotiate, move the court to dismiss, or argue at trial that “with intent to distribute” portion of the charge was unsupported, arguing the absence of other factors indicating an intent to distribute, such as large amounts of cash, scales, cutting agents, and so on.

Experienced drug crimes attorneys will be able to craft solid defenses to heroin distribution or possession with intent accusations. Common defenses to these charges include lack of possession and lack of intent to distribute. In these types of cases, an aggressive criminal lawyer will usually file a motion to suppress evidence, arguing that the search or seizure that led to the charges was illegal. If the motion to suppress is allowed, then the charges are almost always dismissed by the prosecution. Often, drug crimes attorneys will also file pre-trial motions to dismiss the intent to distribute portion of the charges in an effort to have the charge reduced to simple possession.

Distribution or possession with intent to distribute heroin or fentanyl is punishable by up to ten years in the state prison or by up to 2 ½ years in the jail or house of correction or by a fine of $1000-$10,000, or both a fine and imprisonment.

If you or someone you know has been charged with heroin distribution or possession with intent to distribute heroin in Massachusetts, contact the Law Offices of Stephen Neyman, P.C. Attorney Neyman has multiple decades of experience defending those who have been accused of drug crimes in Boston and all throughout Massachusetts. He is an aggressive and smart attorney who is relentless in protecting the freedom of his clients. Charges involving Class A substances are serious and require a lawyer with expertise in the field. You can reach Attorney Neyman by calling 617 263 6800 or by sending him an email. He offers free and confidential initial consultations, which he will schedule at your convenience.