Interviewer: How long have you been working drug cases?
Randy Berman: Well over 30 years. I’ve had drug cases throughout my career. My expertise is not only as a lawyer but as a licensed registered pharmacist makes me more qualified to understand all the issues involving drug cases.
A Controlled Substance is a Drug that the Government has Designated as Having Potential for Abuse
Interviewer: What are the types of drugs that are being found, or the types of cases that you’re working with? What types of drugs are they?
Randy Berman: Well, there are a number of drugs. When we say drug cases we’re always talking about a controlled substance. A controlled substance is a drug that the government has designated as having potential for abuse. There are five schedules of controlled substances, one being the most significant or strong and then going down two, three, four and five being the least addictive or the least strong in the government’s eyes.
The types of drugs that are typically seen in these cases are marijuana, cocaine, oxycodone, Benzodiazepines like Xanax or Valium and heroin.
The Difference between Possession and Intent to Sell or Distribute Charges
Interviewer: What are the significant differences between a possession case versus an intent to sell case?
Randy Berman: The level of punishment for a possession case if it’s not a trafficking amount is the lowest level felony, they call that a third degree felony that’s punishable by up to five years in prison. The attempt to sell or sale case is a second degree felony and that is punishable by up to 15 years in prison.
Interviewer: How much marijuana must one have in order for them to get a misdemeanor versus a felony?
Randy Berman: For misdemeanor marijuana possession it’s got to be under 20 grams which is basically two thirds of an ounce. Anything over that would be a felony.
A Drug Offense Committed in Federal Jurisdiction Results in Federal Charges
Interviewer: At what point does a drug case become a federal case? How does it become a federal case?
Randy Berman: Federal cases require federal jurisdiction. Any drug case could technically be federal because it’s the federal drug law that schedules the drug. There are state laws that also schedule drugs. Generally speaking with federal prosecutors in small quantity cases, they generally only target major traffickers or high volume types of drug cases.
Interviewer: What if someone was growing marijuana for instance, could that be federal?
Randy Berman: Again, any case could be federal because there are prohibitions in both state and federal laws regarding controlled substances. It, again, will depend on the quantity involved but I have seen many marijuana grow house cases that have large quantities remain in state courts. There is no magic number to say at this level you’re going to get prosecuted by federal authorities versus state authorities.
It also depends when the federal authorities get involved on whether you have prior criminal history that would enhance a particular penalty that you would receive. Sometimes their decision is based on prior criminal history along with large quantities where we’re talking about federal prosecution.
Possessing a Legally Prescribed Drug is Not Unlawful But Selling a Drug for You is an Offense
Interviewer: What about legal or prescription drug cases how are those handled?
Randy Berman: If you’re legally prescribed a medicine, whether it is a controlled substance or a non-controlled substance there is nothing unlawful about possessing that lawfully obtained medicine. However, if you get a lawfully prescribed controlled substance and then you sell it that’s not allowed and then that does become a crime. But it’s an absolute defense to a charge of possession of a controlled substance if you obtained it with a lawful prescription.
When I say lawful prescription that means that you had a legitimate condition that justified the prescribing of that medicine and also that the doctor who prescribed it prescribed it in the normal course of his medical practice and for a legitimate medical purpose.