Drug Charges in Baton Rouge, Louisiana

Defense of drug charges requires an experienced, knowledgeable attorney who understands the nuances of these laws.

Possession of Narcotics Offenses

Recreational use of drugs is common, and so are drug charges. Addiction to drugs or alcohol often leads to drug charges as well. Selling or “possession with intent to distribute” is not limited to drug dealers in big organizations because sharing Adderall or other common prescription drugs is considered “trafficking in narcotics,” and ordinary citizens (especially young people) are charged with distribution for what they thought was fairly innocent activity.

Drugs go through cycles of popularity, such as heroin’s recent upswing in use and distribution, powder cocaine in the 70’s and 80’s, or crack cocaine in the 90’s and early 2000’s. One of the current drug trends is abuse of prescription drugs, especially painkillers (opioids), attention deficit hyperactivity disorder and weight-loss drugs (stimulants, amphetamines), and anxiety control medicines (central nervous system depressants, Xanax, Valium). The National Institute on Drug Abuse reports that 12% of 12th-grade students reported using at least one prescription drug for recreational purposes in the previous year and that as many as 6.1% of 10th-grade students and 3.5% of 8th-grade students used an amphetamine in the previous year. In adults ages 18-25, 15.3% reported using psychotherapeutic drugs recreationally in the previous year, and 5.8% of adults 26 and older¹. These staggering numbers show significant abuse of narcotics by adults and teenagers, which in turn explains the huge number of drug cases prosecuted in the United States every year.

Possession of a Controlled Substance

To a lawyer, possession of a controlled substance means “possession of a small amount of drugs for personal use.” Possession of a large quantity of drugs is usually deemed “possession with intent to distribute.” Drugs are ranked by schedules set by the federal government that indicate how severely the substances are controlled.

Schedule I is for drugs that have “a high incidence of abuse, no recognized medical use, and lack of accepted safety for use of the drug under medical supervision,” including:

• Marijuana
• Heroin
• MDMA/Ecstasy
• LSD
• Quaaludes
• Synthetic marijuana

Schedule II drugs have a high incidence of abuse but accepted medical uses, such as:

• Morphine
• Methadone
• Hydrocodone
• Oxycontin
• Cocaine
• Fentanyl
• Methamphetamine
• Amphetamines
• Pentobarbital

Schedule III is for drugs with some potential for abuse but less than Schedules I or II, and which have accepted medical uses, such as:

• Secobarbital
• Ketamine
• Anabolic steroids
• Low-concentration pain pills containing small quantities of opioids

Schedule IV is for drugs with a “low potential” for abuse, have accepted medical uses, and a potential for limited physical or psychological dependence compared with higher schedules, such as:

• Clonazepam/Klonopin
• Ambien
• Ativan
• Valium
• Librium
• Soma
• Talwin
• Tramadol and other commonly prescribed medications

Schedule V is for drugs with some potential for abuse and addiction, but lower than Schedules I–IV, and includes:

• Mild codeine cough syrup
• Ephedrine drugs
• Low-concentration opioid painkillers²

While some states have legalized marijuana for personal use, and others have liberal medical marijuana laws, Louisiana has done neither, and the federal government still prosecutes drug possession and distribution, even in states where the state authorities have declared those drugs legal. In Louisiana and Baton Rouge, first and second offense possession of marijuana, under 14 grams (a half-ounce), is a misdemeanor. In 2016, the Louisiana legislature changed the possession of marijuana laws, which used to provide that first offense possession of marijuana was a misdemeanor, but second or subsequent possession charges were felonies. First offense possession of marijuana, 14 grams or less, is punishable by up to 15 days in prison, a fine of $300, or both. Various classes or community service may also be included by the judge as corrective measures. Possession of synthetic marijuana is punishable by up to six months in prison, a fine of up to $1,000 (depending on jurisdiction), or both³.

Possession of cocaine, prescription drugs, heroin, LSD, psychedelic mushrooms, Xanax, methamphetamine, and most drugs in Schedules I–IV is generally a felony under state and federal law, even for a first offense. Classification of the drugs becomes critical in figuring out possible sentences and negotiating with prosecutors, who are under public pressure to be tough on drugs but may be more inclined to work something out if the substances turn out to be a lower schedule, and therefore, less worthy of punishment.

Drug Arrests Resulting From Drug Addiction

Addiction wrecks lives, making family members into strangers and destroying the trust between friends and family. Apart from the human wreckage of having an addict who’s close to you, addicts are typically engaged in illegal activity, whether it’s possession of controlled substances for personal use, distribution of controlled substances as part of maintaining a steady flow of drugs for personal use, operating vehicles under the influence, or illegal money-making ventures such as theft or fraud to generate funds for more drugs.

Addiction is not a defense to drug crimes, and there is no “addict exception” to the drug laws, but active recovery and rehabilitation is a factor that prosecutors and courts look for when deciding how to handle a drug case. An experienced criminal defense attorney will have recommendations for:

• addiction and substance abuse evaluations
• inpatient and outpatient treatment
• twelve-step programs
• and other forms of mitigation.

Clients who are addicts need special care and often rigorous treatment to get their addiction under control. They also need proper assistance in dealing with the criminal consequences that come with addict behavior.

Drug Paraphernalia

Marijuana pipes, marijuana grinders, glass pipes for crack, methamphetamine, or freebasing, scales, water pipes, bongs, and various other items for the ingestion of drugs are illegal to own. They are sold as “novelties,” as though their purpose is not the consumption of drugs, and often, the police ignore the “head shops” to focus on more dangerous crimes, but possession of drug paraphernalia is a crime and often charged alongside simple possession charges.

Possession of drug paraphernalia is a misdemeanor under state and local law, but one which is enhanceable, so that the penalties increase with each successive conviction. Louisiana’s statewide ban on drug paraphernalia allows for a felony conviction on third offense drug paraphernalia charges. While drug paraphernalia charges are sometimes given to individuals who are being patted down on suspicion of some other crime, it’s most often charged along with possession of marijuana, cocaine, and other narcotics. (Possession of a hypodermic needle without a prescription is also a misdemeanor, but is typically not enhanceable.)

Possession With Intent to Sell

Possession with intent to distribute, or “PWID,” is charged under a few circumstances:

• A person with no history or evidence to support distribution is in possession of a quantity of drugs that exceeds what the police and prosecution believe to be reasonable for personal use
• A person has been caught distributing, and narcotics are found during a search and seizure at another location
• A person is under surveillance or has sold to a confidential informant, and a search reveals the presence of controlled substances.

Possession with intent to distribute is a felony and a serious charge, regardless of the type of controlled substance possessed. State and federal officials may decide to prosecute for possession with intent to distribute, and being prosecuted simultaneously by the state and federal authorities is not considered double jeopardy, although it’s unusual. More importantly, a felony drug conviction can:

• ruin a person’s chances at having a professional or military career,
• cause a current professional license to be revoked,
• or prevent a person from receiving public benefits in times of need.

Drug Manufacturing

Manufacturing controlled substances is most often charged for growing marijuana, which is technically “manufacturing a Schedule I controlled substance.” Methamphetamine labs, particularly in rural areas, are another common basis for a manufacturing charge. Home labs for other drugs are less common, and merely diluting or “cutting” drugs is more often charged as possession with intent to distribute rather than manufacturing.

Louisiana and the United States Code both use an “omnibus” charge for serious drug offenses, which makes it unlawful for any person to:

• produce, manufacture, distribute or dispense dangerous substances or their analogues,
• possess with the intent to produce, manufacture, distribute, or dispense controlled dangerous substances or their analogues,
• or to counterfeit controlled dangerous substances⁴.

The Supreme Court has restricted a number of overactive search methods regarding drug manufacturing, and a knowledgeable criminal defense attorney will review the facts of your case to ensure that any search or seizure was performed legally, or take suitable action to try and exclude any improperly gained evidence.

Trafficking Illegal Drugs

If your child, a high school student, gives an Adderall to his friend during finals, that child has committed a felony. Depending on the child’s age and type of drug, it might be charged as juvenile delinquency, or the child might be prosecuted as an adult.

Not every “drug trafficker” is selling dope on the corner. College students are often charged with distribution for selling marijuana and club drugs out of their dormitory rooms and apartments. Ordinary working folks sometimes supplement their income by selling drugs. People engaged in volume drug trafficking need representation—but so do the small time, casual, or “accidental” dealers.

Distribution of controlled substances is always a felony under state and federal law. Careful investigation of the facts, communication control, mitigation, and proposals for diversion and deferred dispositions are used by criminal defense attorneys to minimize the damage of a drug trafficking charge to their clients.

Conspiracy Drug Charges

Federal law makes conspiracy to commit a serious drug offense (distribution, manufacture, possession with intent to distribute) just as serious as a completed drug offense. Although generally, criminal conspiracy requires two or more people agreeing to commit an illegal act with at least one of them taking some action towards completing the illegal act. 21 USC 846, the federal drug conspiracy law, does not require that “overt act in furtherance.” If you and your friend decide to buy drugs and agree to buy drugs, you’ve committed conspiracy to possess a controlled substance, whether you complete the transaction or not. Attempt to commit a serious drug offense under federal law is just as serious as a completed drug offense.

Louisiana law makes conspiracy to commit a crime that is not completed or attempt to commit a crime that is not completed, a lesser offense. The penalties are halved for conspiracy or attempt under Louisiana law, which is a common plea-bargaining tactic to reduce the overall exposure of a criminal conviction. Make sure your lawyer understands the difference before committing to a defensive strategy or plea bargain.

Federal Drug Defense

Federal agencies sometimes “pick up” local drug cases for prosecution in federal court, and those defendants are merely the victims of bad luck. Federal investigation of drug cases includes a wide variety of methods, including:

• wiretaps,
• confidential informants,
• controlled purchase of drugs,
• mounting remote-control cameras on utility poles,
• aerial surveillance from airplanes and helicopters,
• and even use of satellite imaging⁵.

Federal prosecution is often a shock to defendants who have been in the state system before. The Federal system moves quickly and the United States Attorney’s Office is very selective about the cases they take—they don’t negotiate the way local district attorneys do, and the assumption of many defendants that they can walk in, get a plea bargain, and walk out is shattered by an encounter with the federal government.

• First, defendants rarely get bond or pretrial release in federal drug cases. If a person is charged with a drug offense that can be punished by 10 years or more in prison (which is basically all federal drug offenses), the burden of proof flips to the accused to show that he or she is neither a flight risk nor a danger to the community.⁶
• Second, while state prosecutions tend to be leisurely with trials set months from arraignment, the federal courts take the Constitutional guarantee of a speedy trial very seriously. The court has to set a trial date within 70 days of the accused’s initial appearance—and there are only a few ways to slow that train down.
• Third, delays and continuances are uncommon and discouraged. Continuances require a showing of significant problems or overwhelming evidence from the government to justify a delay of trial for purposes of trial preparation. Filing motions for the defense will momentarily stop the “speedy trial clock,” but unlike state court, federal motions must have a specific and well-researched factual and legal basis, and the usual “placeholder motions” will get your attorney sanctioned by the court, and generate ill will against the defendant.
• Fourth, the assumption of many state court defendants that the DA is just waiting until the last moment to offer his or her best deal is not applicable to federal prosecution. Unless there is a major flaw in the prosecution’s case, which your defense attorney can exploit (and the US Attorney’s Office reviews their cases closely, as a rule), there won’t be any significant plea bargain.
• Fifth, the state court judges can discuss sentences and charges with the prosecution and defense prior to the accused deciding whether to take a plea or go to trial. Federal judges are barred from doing so, and everyone in federal court “pleads blind” (as they say in state court). The Federal Sentencings Guidelines are no longer mandatory but must be calculated, and they are both complex and severe, with numerous enhancements for various details of the criminal behavior. Familiarity with the Sentencing Guidelines and the sentencing factors in Title 18 of the US Code is critical for making good objections to a presentence report, arguing for downward departures from the Guidelines, and arguing against upward departures from the Guidelines.

Criminal defense is similar in state and federal court because both require an attorney to know the law, the procedure, and the custom of the court to provide good service to the defendant. The differences between the two are substantial, and having an attorney who handles both state and federal gives the accused an edge in negotiating with both state and federal prosecutors and in advising a client whether a case is better to try or to plead. The US Attorney’s Office is fond of saying that it has a plea rate of 90% and a 95% conviction rate, and both of those are true. On the other hand, they don’t talk about cases they dismiss because of flaws in the investigation or procedure raised by defense attorneys, and they never talk about defense attorneys who win jury trials.

Joseph K. Scott Is a Proven Drug Defense Attorney

Joseph K. Scott, III, has handled drug cases ranging from simple possession to multinational drug trafficking organizations since 2002 in juvenile, city, state, and federal courts. He has tried about 20 federal jury trials, many of them drug cases, and handled dozens of federal drug cases that were resolved by means other than trial. From October 2013 through January 2017, he was an Assistant City Prosecutor for the City of Baton Rouge, handling hundreds of cases weekly as a prosecutor as well as the appeals, writs, and motions work for the office. Returning to private practice, he is using his experience as a prosecutor to the advantage of his clients in criminal matters, especially young people charged with drug offenses. The philosophy of his office is that young people, in particular, need to be able to experiment and make mistakes without having their futures ruined by misadventure. As a person personally familiar with addicts and addiction, Joseph K. Scott III takes care to ensure that people working through problems with drugs and alcohol get suitable assistance for their dependency and minimize the damage to their lives and livelihood caused by criminal activity. Call Joseph K. Scott today for a free consultation regarding criminal, juvenile, or personal injury cases.

(1) https://www.drugabuse.gov/drugs-abuse/prescription-drugs-cold-medicines
(2) See La. R.S. 40:963, 21 USC 813, https://www.dea.gov/druginfo/ds.shtml
(3) See La. R.S. 40:966 and Baton Rouge Code of Ordinances 11:966. Check our reference page for links to free collections of online statutory materials.
(4) See La. R.S. 40:966-971, 21 USC 841-846.
(5) I’m not making this up. In 2009, I tried a federal drug case in Lake Charles, where the Federal agents had a satellite take a pass over a co-defendant’s ranch, and took photos of the defendants from space.
(6) See 18 USC 3142.