On this page
- What does possession mean under Louisiana drug law?
- What makes it possession with intent to distribute?
- How do the penalties compare?
- Why do fentanyl charges carry such high penalties?
- What is a drug-free zone and how does it change the charge?
- Can a first-time drug charge be resolved without a conviction?
- How are possession and intent charges defended?
- What should you do if you are charged with PWID?
What does possession mean under Louisiana drug law?
Possession means having a controlled substance under your control, whether it is in your pocket or somewhere you are said to control, like your car or bedroom. Lawyers call the second kind "constructive possession." It is often the weakest part of the state's case, especially when several people had access to the same space.
Being in a car, apartment or room where drugs are found is generally not enough by itself. The state has to connect the drugs to you. Who owned or rented the space, where the drugs were found, whose belongings were nearby and whether anyone else had access are all questions a defense lawyer asks.
Simple possession is about personal use. The penalty depends on the drug's schedule and the weight, measured as the total weight of the mixture, not just the pure drug.
What makes it possession with intent to distribute?
Possession with intent to distribute (often called PWID) means the state says you planned to sell, trade or give the drug to someone else. In Louisiana, PWID is punished the same way as distribution itself.
Intent is rarely admitted, so prosecutors try to prove it with surrounding facts. These can include the amount, how it was packaged, scales, large amounts of cash, lists or ledgers, and phone messages. Officers may also point to what you said during the arrest, which is one more reason to stay silent and ask for a lawyer. None of these is automatic proof. Cash can come from a paycheck. A scale can belong to someone else. Separate bags can be how a person bought it. A good defense looks hard at each piece.
How do the penalties compare?
The gap between possession and intent is huge. Here are examples from La. R.S. 40:966 and 40:967:
| Drug | Simple possession | Distribution or PWID |
|---|---|---|
| Marijuana | 14 g or less: up to $100 fine. Over 14 g, 1st: up to 6 months | Under 2.5 lbs: 1 to 10 years. 2.5 lbs or more: 1 to 20 years at hard labor |
| Heroin | Under 2 g: 2 to 4 years. 2 to 28 g: 2 to 10 years | Any amount: 5 to 40 years at hard labor |
| Cocaine, meth and other Schedule II | Under 2 g: up to 2 years. 2 to under 28 g: 1 to 5 years | Under 28 g: 1 to 10 years. 28 g or more: 1 to 20 years at hard labor |
| Fentanyl | Under 2 g: 2 to 4 years. 2 to 28 g: 2 to 10 years | Under 28 g: 5 to 40 years at hard labor (5 without benefit) |
Fines also jump. Possession fines for these drugs generally top out at $5,000, while distribution fines can reach $50,000.
Why do fentanyl charges carry such high penalties?
Louisiana treats fentanyl and carfentanil distribution as among the most serious drug crimes. Distribution or PWID under 28 grams carries 5 to 40 years at hard labor, with 5 years served without benefit. Between 28 and 249 grams, a first offense carries 7 to 40 years. At 250 grams or more, the sentence is life at hard labor, with 25 years without benefit. If distributed fentanyl causes serious bodily injury, the law adds 5 consecutive years.
Because the numbers are so high, weight and lab testing matter a great deal. A lawyer should check how the substance was weighed and tested. Because the law measures the weight of the whole mixture, the weight of cutting agents or weighing errors can push a case into a higher range than the actual drug would justify.
What is a drug-free zone and how does it change the charge?
A drug-free zone covers property on or within 2,000 feet of places such as schools, school buses, day care centers, churches and other religious buildings, drug treatment facilities, public housing (some only if posted) and state parks. If the state charges distribution or PWID in a drug-free zone, the maximum fine increases and the prison term can reach 1.5 times the longest term otherwise allowed.
In a dense city like New Orleans, many addresses fall near one of these places. Whether the zone was measured correctly and properly applies is worth checking. The drug-free zone enhancement applies to distribution and PWID, which is one more reason the line between possession and intent matters.
Can a first-time drug charge be resolved without a conviction?
Sometimes. Louisiana does not have a separate first-offender drug statute anymore, but first-time defendants may be eligible for:
- Article 893 deferral for felonies, which can lead to a set-aside and dismissal after probation;
- Article 894 deferral for misdemeanors, with the same kind of set-aside;
- Drug court or drug division probation in parishes that offer it.
There is an important limit. Article 893 is not available for drug offenses punishable by more than 10 years. That means a PWID charge with a high maximum may shut the door that a possession charge would leave open. Getting a PWID charge reduced to possession can be the key to qualifying. See our guide to Article 893 and 894 set-asides.
How are possession and intent charges defended?
Many drug cases are decided by how the evidence was found, not by what was found. Common defense angles include:
- The search. Was there a valid warrant, valid consent or another legal reason to search? Evidence from an illegal search can be suppressed.
- Possession. Can the state actually connect the drugs to you, or just to a place several people used?
- Intent. Do the facts really show a plan to sell, or just personal use?
- Lab and weight. Was the substance tested properly and weighed correctly?
As a former Orleans Parish prosecutor and public defender, Barry Ranshi has seen drug cases from both sides. Barry also discussed search and seizure in drug cases on his podcast, listed on our videos page. Learn more on our drug charges page, or call (504) 905-8399 to talk through your case.
What should you do if you are charged with PWID?
Treat a PWID charge as serious from the first day, even if the amount seems small. Do not explain to police why you had cash or several bags. Do not discuss the case on jail phones or by text. Keep every document you receive.
Then get a lawyer involved early, ideally before the district attorney decides what to formally charge. The charging decision is often the best chance to argue that the facts show personal use, not intent to sell. If you are in jail, the state generally has 60 days to formally charge a felony, so that window is short.
If police also seized cash, a car or a phone, keep every receipt. Those items may matter to the defense, and you may want them back. If a firearm was involved, read our page on gun and weapons charges, because a gun found with drugs creates a separate, serious charge. Call The Barry S. Ranshi Law Firm at (504) 905-8399 any time, day or night, for a free, confidential consultation. We defend drug charges in New Orleans, Jefferson Parish and across the region.