There is a serious difference between being charged with drug possession, and possession with intent to distribute. The possible sentence is significantly higher, making a lengthy jail or prison sentence much more likely.

So when does simple possession cross the line to where authorities sense a defendant’s alleged “intent” to engage in drug trafficking? Under federal law, there are three elements, all of which must be proven to successfully prosecute for possession with intent to distribute.

1. Possession. Obviously, if the government cannot prove beyond a reasonable doubt that the defendant has a controlled substance in his or her possession, there cannot be evidence of possession with intent to distribute. The drugs need not have been in the defendant’s physical possession, but must have been under his or her known control.

2. Intent to distribute. To prove intent absent a confession, the prosecution must rely on surrounding circumstances. One common piece of evidence is if the amount of drugs in the defendant’s possession was too much to only be for personal use. The presence of things like packaging materials and large amounts of cash can also be used to suggest the defendant’s intentions.

3. Possession with intent to distribute. Once the prosecution has established the first two elements, it must show that both occurred at the same time. For example, a person who plans to traffic drugs but did not have any in his or her possession at the time of his or her arrest cannot be guilty of possession with intent.

If you are ever arrested on drug charges, it is important to remember that you do not have to answer any questions from the police, and that you have the right to a defense attorney during questioning.