Drug Offenses

KENTUCKY LAW ON DRUG OFFENSES AND DEGREES OF DRUG OFFENSES

Crimes having to do with controlled substances are defined in the Kentucky Revised Statutes Chapter 218A. This set of crimes includes drugs scheduling, trafficking, possession, drug paraphernalia, and eligibility for treatment, and pretrial release options.

The general prohibition against trafficking, possessing, or dispensing in controlled substances is given in KRS §218A.1404. Additionally, there are three degrees of trafficking, three degrees of possession, and four degrees of controlled substance endangerment to a child, as well as numerous other prohibited activities related to drugs or synthetics manufacturing and other activities. 

Trafficking: 

Trafficking in a controlled substance in the first degree is defined in KRS §218A.1412 and occurs when a person knowingly and unlawfully traffics in (4) grams or more of cocaine; (2) grams or more of methamphetamine; (10) or more doses of a Schedule I or II controlled substance that is a narcotic or controlled substance analogue; any amount of a controlled substance in less than these quantities; or any quantity of a list of drugs, including but not limited to: heroin, fentanyl, LSD, and GHB; and the amount trafficked may reach the specified amount in one or a series of transaction over a period of time not to exceed (90) days. KRS §218A.142 provides aggravating circumstances for larger quantities of drugs: (100) grams or more of heroin, (28) grams or more of fentanyl; or (10) grams or more of carfentanyl or fentanyl derivatives. 

Trafficking in a controlled substance in the second degree is defined in KRS §218A.1413 and occurs when a person knowingly and unlawfully traffics in any one of three instances. First, by trafficking in (10) or more doses of a non-narcotic Schedule I or II controlled substance not covered by the trafficking in the first-degree statute; or (20) or more doses of a Schedule III controlled substance. Second,  when a person knowingly and unlawfully prescribes, distributes, supplies, or sells an anabolic steroid for performance or muscle enhancement. Third, when a person traffics in less than defined doses listed in the first instance. 

Trafficking in a controlled substance in the third degree is defined in KRS §218A.1414 and occurs when occurs when a person knowingly and unlawfully traffics in either of two circumstances. The first occurs when the amount trafficked is (20) or more doses of a Schedule IV or V controlled substance. The second occurs when the amount trafficked is any quantity of a Schedule IV or V controlled substance less than (20) doses. 

Marijuana is treated differently than controlled substances in Kentucky, and trafficking of marijuana is defined in §KRS 218A.1421. This statute is simple: a person is guilty of trafficking in marijuana when he knowingly and unlawfully traffics in marijuana. Intent to sell or transfer marijuana is assumed when the person is in possession of (8) or more oz of marijuana.  

Possession: 

Possession in the first degree is defined by KRS §218A.1415. As with trafficking, the degrees of possession are delineated by type of drug. Possession requires that the accused knowingly and unlawfully possesses the type of drug that is described in each statute. 

Possession of any of the following drugs is first degree offense: a Schedule I or II controlled substance that is a narcotic, a controlled substance analogue, meth, LSD, GHB, or flunitrazepam (also known as Rohypnol). 

Possession of any of the following drugs is a second-degree offense: a controlled substance in Schedules I or II that is neither a narcotic drug nor specified in the statute defining possession in the first degree; or controlled substance classified in Schedule III; but not synthetic drugs, salvia, or marijuana. 

Possession of any of the following drugs is a third-degree offense: a controlled substance in Schedules IV or V. 

Manufacturing and cultivation:

Manufacturing methamphetamine is prohibited by KRS §218A.1432. manufacturing methamphetamine occurs when a person knowingly and unlawfully either manufactures methamphetamine or, with intent to manufacture methamphetamine, possesses (2) or more chemicals or (2) or more items of equipment for the manufacture of methamphetamine. 

Marijuana cultivation is defined in KRS §218A.1423. This crime occurs when a person knowingly and unlawfully plants, cultivates, or harvests marijuana with the intent to sell or transfer it. 

Endangerment:

Controlled substance endangerment to a child is defined in KRS §§ 218A.1441 to 218.1444. There are four degrees of controlled substance endangerment to a child. First degree occurs when a person knowingly permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture or methamphetamine under circumstances that place a child in danger of serious physical injury or death if the child dies as a result of the commission of the offense. 

Second degree occurs under the same circumstances except the child receives serious physical injury as a result of the commission of the offense. Third degree occurs if the child receives any physical injury as a result. A person is guilty of fourth degree controlled substance endangerment to a child if the child does not receive any injury as a result of the commission of the offense. 

Possession may be a lesser included offense to trafficking, manufacture, or cultivation. Whether one charge may be a lesser included offense of another charge sometimes depends on the circumstances.  

ELEMENTS OF DRUG OFFENSES – OR WHAT MUST BE PROVEN TO BE CONVICTED

Trafficking offenses in the first, second, and third degrees involve the same basic elements, except that the types and amounts vary. The same is true for possession offenses. These crimes share the same mental state: that the accused knowingly trafficked or possessed the drug. The trafficking or possession must be unlawful, that is, without a professional license or a valid prescription. Whether a person is accused of trafficking or possession in the first, second, or third degree depends on whether the government can prove the type and quantity of the drugs.  Where these crimes diverge is in the type of proscribed activity. So, in a trafficking case, it must be proved that the accused either manufacture, distribute dispense, sell, transfer or possessed a drug with the intention of doing any of those things. In a possession case, the prosecutor must introduce evidence that the accused had physical control over the drug or constructive possession of the drug. 

Often, possessing more than a defined amount will be taken as prima facie evidence of intent to traffic. As with trafficking, cultivation of (5) or more marijuana plants is prima facie evidence that the marijuana plants were planted, cultivated, or harvested for the purpose of sale or transfer. This means that the prosecutor does not need to prove that the accused intended to traffic or sell the drug. And even if the accused did not intend to sell it, the law states that intent to sell can essentially be assumed in these instances. 

PENALTY FOR DRUG OFFENSES IN KENTUCKY 

Generally, trafficking or dispensing/distributing in a controlled substance under KRS §218A.1404 is a Class D felony for the first offense and a Class C felony for any subsequent offenses. A Class D felony is punishably by between one- and five-years’ incarceration. A Class C felony is punishable by between five- and ten-years’ incarceration. Possession of a controlled substance under KRS §218A.1404 is a Class A misdemeanor and therefore is punishable by up to 12 months incarceration and/or a fine of $500. KRS §218A.141 gives additional monetary penalties for any person who traffics in a controlled substance other than salvia or marijuana. 

Trafficking: 

Trafficking in a controlled substance in the first degree is a Class C felony for the first offense and a Class B felony for the second or subsequent offense. Class C felonies carry a penalty of five to ten years’ incarceration. Class B felonies carry a penalty of 10 to 20 years’ incarceration. 

If the amount trafficked was less than (4) grams of cocaine, (2) grams of Methamphetamine, or (10) grams of a Schedule I or II controlled substance that is a narcotic or analogue; then the offense is a Class D felony for the first offense and a Class C felony for a second or subsequent offense. Class D felonies carry a penalty of one to five years’ incarceration. 

It is important to note that any person convicted of a Class C felony offense or higher and involving heroin, fentanyl, carfentanyl, or fentanyl derivatives cannot be released on probation, shock probation, parole, conditional discharge, or other form of early release until he or she has served at least 50% of the sentence imposed. 

Aggravated trafficking in a controlled substance in the first degree is a Class B felony and the sentence includes probation, conditional discharge, or parole for different types of drugs contained in the statute. 

Trafficking in a controlled substance in the second degree is a Class D felony for the first offense and a Class C felony for any second or subsequent offense. However, for any violation where the person traffics in less than (10) doses of a non-narcotic Schedule I or II controlled substance not covered by trafficking in the first degree or (20) doses of a Schedule III controlled substance, the first offense is a Class D felony with a maximum sentence of (3) years and second or subsequent offense is a Class D felony a penalty of between one- and five-years’ incarceration. 

Trafficking in a controlled substance in the third degree can be either a Class A misdemeanor or a Class D felony, depending on the quantities trafficked. The first offense is a Class A misdemeanor if it involves (120) doses or fewer; however, it is a Class D felony if it involves more than (120) doses. The second or subsequent offense is a Class D felony. Any third-degree trafficking of less than (20) doses of a Schedule IV or V controlled substance is a Class A misdemeanor for the first offense; it is also subject to presumptive probation. Any second or subsequent offense involving less than (20) doses is a Class D felony with a maximum sentence of no longer than (3) years. 

Penalties for trafficking in marijuana are contained in the same statute, with the difference being the amount. Thus, trafficking in less than (8) oz of marijuana is a Class A misdemeanor for the first offense and a Class D felony for the second or subsequent offense.  Trafficking in (8) or more oz but less than (5) lbs of marijuana is a Class D felony for the first offence and a Class C felony for a second or subsequent offense. Trafficking in (5) or more lbs of marijuana is a Class C felony for the first offense and a Class B felony for the second or subsequent offense. 

Possession:

Possession of a controlled substance in the first degree is a Class D felony, with some limitations provided by the statute. The maximum term of incarceration is (3) years, the minimum is (1) year. It is important to note that a person convicted of possession of a controlled substance may be subject to a period of deferred prosecution or presumptive probation for either a first or second offense, and deferred prosecution is preferred if it is a first offense. 

Possession of a controlled substance in the second degree and third degree are both Class A misdemeanors and therefore carry a penalty of up to (12) months incarceration and/or a $250 fine. 

Deferred prosecution for first and second offenders of KRS §218A.1415 is outlined in KRS §218A.14151. This statute states that a person who is charged with a first or second possession in the first-degree offense may enter a deferred prosecution program unless the prosecution gives substantial and compelling reasons as to why the accused cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety. The real benefit of deferred prosecution is that if successfully completed, the accused’s charges will be dismissed, all records related to case will be sealed (subject to some exceptions, of course), and in all material respects, the offense will be deemed never to have occurred. If given the opportunity to enter into a deferred prosecution program, it is important not to violate the conditions of the program. 

Manufacturing and cultivation: 

Marijuana cultivation penalties range from Class A misdemeanor to a Class C felony depending on how many plants were cultivated and whether the offense was a first or subsequent offense. If (5) or more plants were cultivated, then marijuana cultivation is a Class D felony for a first offense or a Class C felony for a second or subsequent offense. If fewer than (5) plants were cultivated, then marijuana cultivation is a Class A misdemeanor for a first offense or a Class D felony for a second or subsequent offense. 

Manufacturing methamphetamine is a Class B felony for the first offense and a Class A felony for a second or subsequent offense. 

Endangerment: 

Controlled substance endangerment to a child in the first degree is a Class a felony and is therefore punishable by 20 to 50 years’ incarceration, or life. In the second degree, it is a Class B felony punishably by between 10- and 20-years’ incarceration. In the third degree, it is a Class C felony punishable by between five- and ten-years’ incarceration. In the fourth degree, it is a Class D felony, punishable by between one- and five-years’ incarceration. 

Firearms enhancement: 

Penalties for certain offenses can be enhanced in severity by one class under KRS §218A.992. Thus, any person who is convicted of any violation of Ch. 218A who, at the time of the commission of the offense and in furtherance of the offense, was in possession of a firearm, shall: (a) be penalized (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony; or (2) be penalized as a Class D felon if the offense would otherwise misdemeanor. There are limited exceptions for salvia offenses and for possession of controlled substances not in the original container. 

DEFINITIONS

To traffic means to manufacture, distribute dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance under KRS §218A.010 or methamphetamine under KRS §218A.1431.

Mental states required to be proven by the prosecution are defined in KRS §218.015 pursuant to KRS Ch. 501. Thus, in the context of trafficking, knowingly means acting knowingly with awareness that the conduct is of the proscribed nature or that the circumstance exists. 

DRUG OFFENSES AS SEEN THROUGH CASE LAW 

Many cases involving drugs offenses deal with what is called the Double Jeopardy Clause of the Constitution. The Double Jeopardy Clause prohibits the government from putting a person in danger of being punished twice for one instance of committing a single crime. The reason that many cases discuss this prohibition is because there are a lot of overlapping elements in the different drugs crimes. 

For example, it is not a violation of double jeopardy to use evidence of cocaine trafficking (crime #1) as part of the evidence for criminal syndicate (crime #2) and for the defendant to be convicted of both crimes. Edmonds v. Com., 906 S.W.2d 343 (1995). That is to say, the same circumstances or instances of conduct may be used to prove the trafficking in cocaine as well as the criminal syndicate. Each of these crimes contains and something that needs to be proved that does not need to be proved in the other crime.  

On the other hand, it would be a violation of double jeopardy if a defendant were to be convicted two crimes that did not require proof of an additional crime that the other did not. In a case from 2021, Collins v. Commonwealth, for example, the defendant was convicted of both first-degree possession of a controlled substance and first-degree promoting contraband. 640 S.W.3d (Ky.App. 2021). In a case from 2004, Johnson v. Commonwealth, double jeopardy was violated when the defendant was convicted of possessing the same methamphetamine that he was convicted of manufacturing. 134 S.W.3d 564 (Ky. 2004). However, a conviction for methamphetamine possession alongside a conviction for manufacturing methamphetamine, where the manufacturing conviction was based on possession of methamphetamine precursors would not violate double jeopardy. Bennett v. Commonwealth, 2011 WL 4430862 (Ky. 2011).  

DEFENSES 

“Innocent possession” or “innocent trafficking” are both affirmative defenses that may be available. An affirmative defense admits that the accused did the conduct alleged, but that they had a good or excusable reason for it. The “innocent possession” or “innocent trafficking” defenses apply in cases where, for example, the accused had possession of the drugs for no longer than was reasonably necessary to allow him to return it to the owner, to surrender it to the authorities, or to find another way to suitably dispose of them. Com. v. Adkins, 331 S.W.3d 260 (Ky. 2011).  

Other defenses involve attacking an element of the crime. This might include disputing the amount of the drug discovered or the mental state (e.g., knowing) of the accused. 

Aside from focusing on the crime itself, a person accused of a drugs offense can also make procedural attacks on the manner in which the government conducted its investigation, such as how officers might have searched a car where drugs were found, or a house. The goal of these defenses is usually to get a piece of evidence thrown out, so that the prosecution cannot use it in the event of a trial, to get the charges dismissed, or to negotiate a good plea deal.