Drug Possession and Distribution Charges in Washington, D.C.

As in most jurisdictions, drug crimes are one of the most frequently prosecuted crimes in the District of Columbia.  In 2015, the Metropolitan Police Department (MPD) made over 5,000 arrests for narcotics related offenses, just below the number of arrests for simple assault. How do D.C.’s drug laws work?  And what happens when you are prosecuted for a drug offense?  On this page, we will discuss some of the particulars of Washington, D.C.’s drug laws.

What different kinds of drug offenses are charged in D.C.?   

Broadly speaking, there are three different kinds of drug offenses in D.C.: distribution, possession with intent to distribute, and simple possession.

Distribution and Possession with Intent to Distribute 

D.C. Code 48-904.01(a) makes it a felony offense to “manufacture, distribute, or possess with intent to distribute a controlled substance.”  Depending on the substance involved, the offense carries up to 30 years in prison.

The main difference between a distribution charge and a possession with intent to distribute (PWID) charge is the proof required.  For a distribution charge, the government needs to prove an actual transfer of the controlled substance.  In the case of PWID, the government just needs to prove that the defendant intended to transfer the controlled substance.

Importantly, D.C. law does not require proof that the defendant received or expected to receive anything of value.  Therefore, distribution and PWID charges can be used in many cases outside of a typical drug-dealing situation, including instances of purely social drug use (such as when two people share drugs).

Simple possession

Simple possession is generally a misdemeanor charge that carries up to 180 days in jail and/or a $1,000 fine.  Simple possession of phencyclidine (PCP) in liquid form is a felony that carries up to 3 years in prison and/or a $3,000 fine.

In order to convict a defendant of “simple possession”, the government must prove that the defendant possessed a measureable amount of the controlled substance and did so voluntarily and on purpose, not by mistake or accident.  Although the government does not have to show that the defendant knew the exact kind of controlled substance he possessed, it is required to show that the defendant knew that what he possessed was some kind of controlled substance.

Is marijuana possession legal in D.C.? 

In 2015, the District reworked its marijuana laws in response to a referendum. As a result of that change, D.C. law permits the following by people who are at least 21 years old:

  • Possess up to 2 ounces of marijuana
  • Transfer (without compensation) up to 1 ounce of marijuana
  • Grow up to six marijuana plants, of which no more than 3 are mature

It is still illegal to sell marijuana, to use it in public, or to operate a vehicle while under the influence of marijuana.

Possession of any amount of marijuana remains technically illegal under federal law.  Currently, however, the federal government has followed a policy of not prosecuting individuals for marijuana possession/distribution where the individual has not violated local or State law. If that policy ever changes, then you may be subject to prosecution by the federal government, even if your conduct is authorized by D.C. or state law.

Asserting your Fourth Amendment Rights   

If you are facing a D.C. drug charge of some kind, the police probably gathered evidence against you using a search and/or seizure.  One of the first questions to ask in any drug case is whether the police investigation complied the the Fourth Amendment’s constitutional protections against unreasonable searches and seizures.

For example, in cases which arise from on-the-street interactions, it may be that the police performed a stop without reasonable suspicion, or a full search of the person without probable cause.  In cases arising from a search warrant, you will want to know how the police developed probable cause to get the warrant, and if they limited the search to the places and things described in the warrant.  If it turns out that the police did not follow the rules, your lawyer can file a “motion to suppress” the evidence.  If the court grants the motion, the evidence cannot be used against you and you may win your case. 

Possible federal involvement in D.C. drug cases  

As a general rule, if the case involves a large quantity of drugs (e.g., multi-kilograms of cocaine), it is likely to be prosecuted by the federal government in federal court–the United States District Court for the District of Columbia.  If the case involves a smaller quantity of drugs, it is likely to be prosecuted in the local court–the D.C. Superior Court.

In some instances, a case may start out in Superior Court, but then be transferred to federal court when the prosecution finds evidence that the defendant was more heavily involved in drug dealing than initially believed.  A transfer to federal court is almost always a bad outcome for the defendant.  Federal drug laws tend to be more severe and the federal sentencing guidelines tend to call for higher penalties than D.C.’s Voluntary Sentencing Guidelines.

Consult an attorney if you have been charged with a drug crime

If you are facing a PWID or distribution charge in Superior Court, you will want to be alert to the possibility of federal involvement.  If you choose to contact our firm, we can advise you on chances that your DC drug cases will attract the attention of federal law enforcement, and what you can do to prevent that from happening.