Monday, July 23, 2007

Possession of Controlled Substance - Drugs - State or Federal?

If I am arrested for possession of marijuana, will it be a state or federal charge?

Possession of marijuana is charged as the crime of Possession of a controlled substance. As with any drug crime, a person can be compelled to testify before a grand jury, charged, tried, convicted and sentenced by a federal agency, a state agency, or both for each incident of possession. If convicted by both a federal court and a state court, each court can impose a separate sentence including fines, imprisonment, or both. Imprisonment for a federal offense is in a federal prison, and imprisonment for a state offense can be in a state prison, a county jail, or both.

Double jeopardy does not apply when two separate governments prosecute an individual for the same crime and the same incidence of the crime. Either agency can be the first to charge an individual, and the other agency can bring charges afterwards regardless of whether the individual is convicted or acquitted in the first trial. The same applies to plea bargains unless the settlement agreement specifically excludes the other agency from bringing charges.

In most cases, there is no discussion between the federal government and the state government regarding which government will prosecute the defendant, unless there is a very large quantity of drugs delivered or possessed with intent to deliver.

The charge of possession of a controlled substance is based on the quantity of the drug. The laws for each drug classification provide the quantity limit for "personal use", and if that limit is exceeded, the charge can also include "intent to sell, delivery or distribute".

Drug charges and convictions are posted on the Wisconsin State Circuit Court website (CCAP) located at:

Wisconsin law provides a right to an automatic appeal if a person is convicted of a crime in a Wisconsin state court. An automatic right to appeal only eliminates the process of applying for the right to be heard by the Court of Appeals. If a person is convicted of drug charges under both Federal and Wisconsin state law, an appeal is made to the respective higher court - to the US Court of Appeals for convictions from a Federal court and to the Wisconsin State Court of Appeals for convictions from a Wisconsin State Circuit Court.

Helpful information:
Wisconsin Drug Crimes
State Drug Crime Penalty Schedules
Federal Drug Crime Penalty Schedules
Federal - Distribution & Sexual Assault
Search & Seizure In Drug Crimes
Double Jeopardy
Criminal Trials in Wisconsin

Federal Defense Attorney Chris Van Wagner & Tracey Wood