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Understanding Federal Versus State Drug Charges

  • By: Forman Law Group
  • Published: September 24, 2019

The distinction between federal and state drug charges is not always clear, leaving many people who have been arrested for a drug-related crime to wonder whether their case will be handled at the state or federal level, or whether they will face a misdemeanor or felony charge. The line between state and federal-level drug charges is blurry because almost every type of drug-related crime can be charged at either level. The difference between the two may be difficult to discern, but the penalties associated with federal-level charges are significantly more severe in almost every case. In addition to time in prison and fines of $1,000 or more, federal drug possession charges can result in the loss of any property involved in the commission of the crime, the loss of the right to own or use firearms, and the loss of the ability to obtain student loans.

While the following list is not complete, if any of the following four things occur in a drug case, then it will be handled as a federal crime:

  1. The defendant was identified by a federal informant
  2. A federal agent conducted the defendant’s arrest
  3. The drug crime occurred on federal property
  4. The illegal activity occurred outside of the U.S. or across state lines

Nearly any drug crime can be handled at the federal level, and likely will if the state’s resources are insufficient to conduct a proper investigation or if it is otherwise determined that the federal government should have jurisdiction. In some cases, an individual who is found to be involved in drug-related criminal activity outside of the U.S. or in a different state within the U.S. will be subject to extradition, the process by which governments turn over individuals to other jurisdictions for the purposes of punishment. Extradition to the U.S. can occur when an individual commits a crime in a country with which the U.S. has an extradition treaty, and there are over 100 such countries.

What are the federal drug categories?

The Controlled Substance Act (CSA) categorizes controlled substances based primarily on three characteristics: potential for abuse, medical value, and the level of safeness. Each drug is placed in one of five schedules; Schedule I drugs are considered to have the highest potential for abuse and no accepted medical uses, while Schedule V drugs are considered to have the lowest potential for abuse and at least one accepted medical use.

What are the mandatory minimum sentencing and federal sentencing guidelines for drug charges?

In most cases, judges at the federal level will mandate that individuals who have been convicted of a federal drug charge serve a minimum sentence in prison. The length of time will depend on a number of factors, including the type and quantity of drug involved in the crime, whether or not the crime involved the use of a firearm, and whether or not the defendant has prior drug-related convictions on their record. For some drug-related crimes, the mandatory minimum sentence is life in prison, while other drug-related crimes carry a mandatory minimum of under one month. While judges must abide by mandatory minimum or maximum sentences, they have no obligation to execute federal sentencing guidelines for drug charges, as these guidelines are merely advisory and non-binding. However, federal sentencing guidelines are meant to help guide judges through the process of using discretion when sentencing individuals convicted of federal drug crimes.

Under what circumstances would I be served with a federal grand jury subpoena in connection to a federal drug charge?

A federal grand jury is comprised of a maximum of 23 jurors, 16 of whom must be present at proceedings, and at least 12 of whom must return a federal indictment. During the course of a federal trial, grand juries have the authority to subpoena documentation and/or testimony by any individual believed to have information pertinent to the case at hand. Anyone who receives a federal grand jury subpoena must respond accordingly. Such subpoenas can be intimidating to receive, but the following are some useful guidelines to follow:

  • Always consult an attorney
  • Know that pre-grand jury interviews are not required
  • Understand the government’s obligation to federal grand jury secrecy and ensure that it is enforced
  • Consider whether or not it would be beneficial to invoke the Fifth Amendment right against self-incrimination
  • Ask an attorney about the feasibility of arranging a shadow grand jury

Will I be able to post bail on a federal drug charge?

Whether or not bail will be set in a federal drug case will depend on a number of factors, including the nature of the charge, the defendant’s prior criminal history, and their position within the community. Prior to being granted bail, every defendant of a federal drug charge must appear in court before a United States Magistrate. In most cases, this court appearance will take place within a day or two of the arrest. During this appearance, a pretrial service officer will speak on behalf of the defendant and provide a recommendation as to what they believe is an appropriate amount of bail to set given the circumstances of the case. If it is determined that the defendant is likely to flee once out on bail or poses a danger to the community, then they will remain in custody without the possibility of posting bail. In every case, a defendant who has been denied the opportunity to be released on bail will have the right to appeal that decision to a federal judge.

What are the most common defenses to federal drug possession charges?

Federal drug possession charges can be defended in numerous ways. One of the most common defenses involves arguing that the arresting officers violated the Fourth Amendment right to protection against unlawful search and seizures. Other defenses include claiming that the defendant was not actually in possession of the drugs, or that the defendant had no way of knowing that the drugs were present or within reach of their person. In every case, an experienced federal drug possession lawyer should be consulted. Once equipped with all of the details relating to a particular case, a lawyer will be able to launch their own investigation, collect necessary evidence, and begin formulating the strongest possible defense in favor of the defendant.

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