Rhode Island Drug Possession with Intent to Deliver

Criminal Defense Lawyer John L. Calcagni, III

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Under Rhode Island Criminal law, Possession with the Intent to Deliver a Controlled Substance may be found under the Uniform Controlled Substances Act at Rhode Island General Laws, Chapter 21, Title 28.

This offense penalizes the conduct of manufacturing, delivering, or possessing a controlled substance with the intent to manufacture or deliver that substance.  

The penalties are listed according to the specific drug and quantity that was possessed.  Each drug is placed within one of five Drug Schedules based upon its potential for abuse and medical treatment.

Legal Elements for Possession with Intent to Deliver a Controlled Substance

In order to be convicted of Possession with Intent to Deliver a Controlled Substance under Rhode Island Criminal law, there must exist strong evidence of the following four legal elements:

  1. that the defendant possessed the specific drug in question
  2. the defendant did so knowingly and intentionally
  3. that he possessed the drug with the specific intent to deliver it
  4. that drug is a controlled substance under Rhode Island criminal law

What is Possession for Purposes of Possessing a Controlled Substance

Under Rhode Island criminal law, there are two ways to possess a controlled substance:

  1. actual possession
  2. constructive possession

Actual Possession

A person has actual possession of a drug if he or she has direct physical control over it, with knowledge of its narcotic or illegal drug nature.  Absent physical or actual possession, a person can constructively possess and item. 

Constructive Possession

One has constructive possession of a drug if he has knowledge of the substance and has both the power and intent to exercise dominion or control over it, either by himself or through a third person.  

Sole or Joint Possession

Possession may also be sole or joint.  A person has sole possession of a drug if he or she alone has actual or constructive possession of it.  If two or more persons share actual or constructive possession of the substance, that is called joint possession. 

Possession is not conditioned on the length of time that a person has an item under his or her control. Knowing or conscious contact with an item, even though fleeting or momentary, is enough to prove the element of possession for the crime, Possession of a Controlled Substance.

What Drugs are Considered Controlled Substances

Under Rhode Island General Laws, Section 21-28-2.08, each drug is listed in a specified drug Schedule. There are many drugs listed in the schedules and are identified by their scientific name rather than the more well-known street names.  

For example, some drugs contained in Schedule I and II are as follows:

  • Fentanyl
  • Heroin
  • Coca Leaves
  • Cocaine
  • Ecgonine
  • PCP
  • LSD
  • Marijuana
  • MDMA

Any form of these drugs is prohibited by Rhode Island criminal law.  This includes leaves, salts, optical and geometric isomers, salts of isomers, derivatives, extracts and more.  

Though the drug may change form, the law targets and prohibits the chemical composition that makes up the substance. 

Therefore, changing a drug’s physical properties does not enable you to avoid application of and prosecution under of the Rhode Island drug laws.   

What is Intent to Deliver for the Purposes of this Crime

To be convicted of Possession with Intent to Deliver under Rhode Island criminal law, there must exist a specific intent to deliver the substance.  Deliver in this context means to give, or to transfer, or to hand over to another person. There does not need to be an actual delivery or sale of the controlled substance for the crime to occur.  All that is required is that the defendant had the intent to deliver the controlled substance to another person or persons at some time in the future.

Specific intent means a person acted deliberately and purposefully, with the intention of causing the required bad or improper end result.  Because it is impossible to read one’s mind or know for sure their thoughts and inner workings of the mind, a person’s intent can be inferred by the surrounding circumstances as well as any statements made, or acts done or omitted by the defendant.

In drug prosecutions, defendants are often charged with Possession with Intent to Deliver a controlled substance offense where there is no actual delivery at all.  

Police and prosecutors attempt to prove the charged offense(s) based on the quantity of drug seized.  

If the quantity of the drug seized is greater than what a drug addict would be expected to possess for purposes of personal use, the implication is that the drugs were intended for delivery. 

Similarly, other items of evidence colloquially referred to as drug trafficking paraphernalia or tools of the drug trade may assist law enforcement with drawing an inference that the defendant possessed a drug with the intent to deliver it.  

Examples include, but are not limited to:

  • digital scales
  • packaging materials
  • cutting agents or adulterants used to cut drugs or mix and expand the volume of drugs
  • drug ledgers showing quantities distributed and debts owed
  • kilogram presses and other packaging equipment
  • multiple cellphones
  • concealed compartments inside of automobiles used to secretly transport drugs and/or drug proceeds
  • firearms
  • cellphones, and more

Determining Drug Type in a Drug Case

Drug type is an important aspect of drug investigations, arrests and prosecutions. 

Rhode Island criminal laws regarding controlled substances are aimed at prosecuting the possession and trafficking of certain drug types. 

When police come upon a substance they suspect to be a controlled substance, they initially identify the substance based on its physical properties such as color, consistency, and smell.  

If a particular substance is suspected to be a controlled substance, police in the field may use a portable test known as a field test to confirm the illegal nature of the substance. 

Though not 100% accurate and inadmissible in court, field test results aid police with making probable cause determinations necessary to make drug arrests and similarly with applying for search and/or arrest warrants.

Following a drug arrest and seizure of a suspected drug, the substance is submitted for sensitive laboratory testing to confirm its drug type and quantity.  

Laboratory reports pertaining to this testing are disclosed to the defense by the prosecution during discovery in criminal cases. 

If a case ultimately proceeds to trial, the chemists who performed the laboratory testing and authored the lab reports are called as witnesses to testify about their drug testing procedures and results. 

Determining Drug Quantity in a Drug Case

Drug weight or quantity is also an important aspect of drug investigations, arrests and prosecutions. 

When suspected drugs are seized from a defendant or crime scene, the police officer who collects the drugs and logs them into evidence will record their gross weight. 

Gross weight includes the weight of the actual drugs along with the accompanying packaging materials, if packaged at the time of seizure.  After drug evidence is seized, the substance is sent off to a drug laboratory for additional weighing and testing. 

The purpose of the testing is for chemists to determine, with scientific certainty, the chemical composition of the substance and its precise weight.  

This weight, reported as net weight, consists solely of the drug and not any packaging material.  If the seized drug is packaged at the time of its seizure, the laboratory will remove the packaging materials before measuring and recording net weight.

Penalties and Potential Punishment if Convicted of Possession with Intent to Deliver a Controlled Substance in Rhode Island

Possession with Intent to Deliver a Controlled Substance is a felony under Rhode Island criminal law.  The term of imprisonment for convicted offenders is based on the type of drug and quantity possessed.  For possession with intent to deliver a Schedule I or II drug, a convicted offender faces a term in prison of not more than 30 years. Upon a conviction for possessing with intent to deliver a Schedule III or IV drug, a defendant faces a term in prison of not more than 20 years. Some Schedule III drugs carry a term of potential imprisonment of not more than 5 years.  These penalties may be found at Rhode Island General Laws, Section 21-28-4.01.

Rhode Island criminal laws regarding illegal drugs also provide for a separate sentencing scheme when a specified controlled substance is possessed with intent to deliver in a certain, specified quantity.

Specifically, Rhode Island General Laws, Section 21-28-4.01.1 provides a term of imprisonment up to 50 years for possessing with intent to deliver the following drug types at the following drug quantities:

  • One ounce to one kilogram of Heroin, Cocaine, Ecgonine, Coca leaves, synthetic drugs, or Fentanyl;
  • One kilogram to five kilograms of Marijuana;
  • One gram to ten grams or 100 tablets to 1,000 tablets of PCP; and
  • One-tenth of a gram to one gram or 100 tablets to 1,000 tablets of LSD.

Furthermore, Rhode Island General Laws, Section 21-28-4.01.2, provides a term of imprisonment of up life for possessing with intent to deliver the following drug types at the following drug quantities:

  • More than one kilogram of Heroin, Cocaine, Ecgonine, Coca leaves, synthetic drugs, or Fentanyl;
  • More than five kilograms of Marijuana;
  • More than ten grams or 1,000 tablets of PCP; and
  • More than one gram or 1,000 tablets of LSD.

Collateral Consequences of Possession with Intent to Distribute Drugs

Being charged with Possession with Intent to Distribute Drugs may have serious collateral consequences.

These may include:

  • denial of public housing
  • financial aid to attend school
  • the ability to serve in the military or armed forces
  • various employment opportunities and in some states
  • a license to operate a motor vehicle

What Happens If an Offender Has Children

If an offender has children, a Drug or Narcotics Offense charge may also implicate state agencies such as the Department of Child Services (DCS) or Department of Children, Youth and Families (DCYF).

These agencies may initiate independent investigations to consider the welfare of child or children who may have been exposed to a parent who is selling drugs.

This could lead to removal of a child or children from the household or limiting or restricting parental rights.

Possession with Intent to Distribute Drugs is a serious matter.

If you have been charged with Possession with the Intent to Distribute Drugs, it is important to seek legal representation immediately in order to protect your rights and minimize the impact that a charge of his nature may have on your life.

Case Results: Possession with Intent to Deliver

Possession with Intent to Deliver 68 Pounds of Marijuana: 90 Days ACI and Probation

Members of the Rhode Island State Police stopped a vehicle for speeding. The operator, a man of Chinese descent, produced a valid New York driver’s license and New York registration for the vehicle. When questioned about his activities, the man said he was traveling from his home in New York to attend a friend’s party in Boston, MA. The man also showed police the GPS display opened on his cellphone. A trooper shined a flashlight inside the man’s vehicle and saw three large black garbage bags. When he questioned the man about the bags’ contents, the man replied he did not know and that they belonged to a friend. The man then began to display signs of nervousness and physical illness. This prompted the trooper to ask the man to step out from his car and stand on the roadside. The trooper then called for the assistance of a K9 Officer and a drug detection dog. Once they arrived, the dog alerted to the rear of the man’s vehicle where the bags were stored. Troopers then opened the bags and discovered 68 individually wrapped pounds of marijuana. The man was arrested and charged with Possession with Intent to Deliver Marijuana. He retained Rhode Island Criminal Defense Lawyer, John L. Calcagni III, to defend him in this matter. Attorney Calcagni’s first priority was to secure his client’s release on bail. After losing an evidentiary bail hearing in Rhode Island District Court, Attorney Calcagni filed a bail petition or appeal in Superior Court. The bail appeal was successful. Attorney Calcagni then filed a motion to suppress, attacking the lawfulness of his client’s motor vehicle stop and search. After the Court denied the motion, Attorney Calcagni shifted his focus to pretrial negotiations. He ultimately persuaded the Court, over the prosecution’s objection, to sentence his client to 90 days to serve, deemed served while awaiting the bail appeal, followed by a term of probation.

Possession with Intent to Distribute Marijuana: Reduced to Misdemeanor Possession and Filed for One Year

Johnston Police conducting an undercover narcotics investigation received information from a confidential source about an illegal, indoor marijuana grow in the Town.  Police sought a thermal imaging warrant for the home, which demonstrated that portions of it were heat soaked – a fact consistent with growing marijuana.  Based on this information, they then sought a search warrant for the premises.  They executed the warrant and once inside, police discovered a large amount of marijuana plants in various stages of vegetation, several pounds of dried marijuana ready for distribution, various equipment and related items for marijuana cultivation, and approximately $10,000 in cash.  Based on these discoveries, police arrested the home owner and charged him in Rhode Island Superior Court with Possession with Intent to Distribute Marijuana.  He and his family retained Rhode Island Drug Defense Lawyer, John L. Calcagni III, to defend him in this matter.  Attorney Calcagni’s first success for this client was securing his release on bail.  Next, Attorney Calcagni filed a motion to suppress, alleging that the warrants for the man’s home (for thermal imaging and to search) were issued in the absence of probable cause.  With this motion pending, the prosecution offered to resolve the man’s case by reducing the charged felony to misdemeanor simple possession of marijuana and filing the matter for one year.  The man accepted the offer.  Providing he is not charged with a new offense during the filing period, the matter will be dismissed and sealed from public record.


If you have been charged with drug possession with intent to distribute and need expert legal representation, contact the Rhode Island Drug Possession Lawyers at the Law Office of John L. Calcagni III by email or call today at (401) 351-5100 to schedule a free consultation.