Trafficking First Degree

Trafficking drugs in the first degree can be committed in different ways, but possession is not an element of the completed offense—although possession of trafficking quantities can support a finding of an attempt to commit trafficking first degree. Trafficking in the first degree consists of knowingly distributing, delivering, manufacturing, producing or attempting to distribute, deliver, manufacture or produce specified quantities of selected controlled substances or mixtures of such substances. Heroin, cocaine (coca leaves and related substances), cocaine base, lysergic acid diethylamide (LSD), phencyclidine (PCP), marijuana, amphetamine, methamphetamine (and related substances), are the substances specified by the trafficking first degree statute, with different quantities of each substance carrying the enhanced penalties.²⁰ The quantities involved range from 30 grams of heroin to 500 milligrams of LSD to one hundred or more kilograms of marijuana.

It is important to note that the trafficking first degree offense also includes distribution, delivery, etc., of specified amounts of “a mixture or substance” containing a “detectable amount” of controlled substance. The amount of the controlled substance itself is not the critical element of the offense. Trafficking can be committed by an “attempt” to manufacture or produce the controlled substance.

579.065. Trafficking Drugs, First Degree:

1. A person commits the offense of trafficking drugs in the first degree if, except as authorized by this chapter or chapter 195, such person knowingly distributes, delivers, manufactures, produces or attempts to distribute, deliver, manufacture or produce:

(1) More than thirty grams but less than ninety grams of a mixture or substance containing a detectable amount of heroin;

(2) More than one hundred fifty grams but less than four hundred fifty grams of a mixture or substance containing a detectable amount of coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; cocaine salts and their optical and geometric isomers, and salts of isomers; ecgonine, its derivatives, their salts, isomers, and salts of isomers; or any compound, mixture, or preparation which contains any quantity of any of the foregoing substances;

(3) More than eight grams but less than twenty-four grams of a mixture or substance described in subdivision (2) of this subsection which contains cocaine base;

(4) More than five hundred milligrams but less than one gram of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(5) More than thirty grams but less than ninety grams of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(6) More than four grams but less than twelve grams of phencyclidine;

(7) More than thirty kilograms but less than one hundred kilograms of a mixture or substance containing marijuana;

(8) More than thirty grams but less than ninety grams of any material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system: amphetamine, its salts, optical isomers and salts of its optical isomers; methamphetamine, its salts, optical isomers and salts of its optical isomers; phenmetrazine and its salts; or methylphenidate; or

(9) More than thirty grams but less than ninety grams of any material, compound, mixture, or preparation which contains any quantity of 3,4 methylenedioxymethamphetamine.

2. The offense of trafficking drugs in the first degree is a class B felony (a prison term of years not less than five years and not to exceed fifteen years).

3. The offense of trafficking drugs in the first degree is a class A felony (a term of years not less than ten years and not to exceed thirty years, or life imprisonment) if the quantity involved is:

(1) Ninety grams or more of a mixture or substance containing a detectable amount of heroin; or

(2) Four hundred fifty grams or more of a mixture or substance containing a detectable amount of coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; cocaine salts and their optical and geometric isomers, and salts of isomers; ecgonine, its derivatives, their salts, isomers, and salts of isomers; or any compound, mixture, or preparation which contains any quantity of any of the foregoing substances; or

(3) Twenty-four grams or more of a mixture or substance described in subdivision (2) of this subsection which contains cocaine base; or

(4) One gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD); or

(5) Ninety grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP); or

(6) Twelve grams or more of phencyclidine; or

(7) One hundred kilograms or more of a mixture or substance containing marijuana; or

(8)Ninety grams or more of any material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system: amphetamine, its salts, optical isomers and salts of its optical isomers; methamphetamine, its salts, optical isomers and salts of its optical isomers; phenmetrazine and its salts; or methylphenidate; or

(9) More than thirty grams of any material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system: amphetamine, its salts, optical isomers, and salts of its optical isomers; methamphetamine, its salts, optical isomers, and salts of its optical isomers; phenmetrazine and its salts; or methylphenidate, and the location of the offense was within two thousand feet of real property comprising a public or private elementary, vocational, or secondary school, college, community college, university, or any school bus, in or on the real property comprising public housing or any other governmental assisted housing, or within a motor vehicle, or in any structure or building which contains rooms furnished for the accommodation or lodging of guests, and kept, used, maintained, advertised, or held out to the public as a place where sleeping accommodations are sought for pay or compensation to transient guests or permanent guests; or

(10) Ninety grams or more of any material, compound, mixture or preparation which contains any quantity of 3,4-methylenedioxymethamphetamine; or

(11) More than thirty grams of any material, compound, mixture, or preparation which contains any quantity of 3,4-methylenedioxymethamphetamine and the location of the offense was within two thousand feet of real property comprising a public or private elementary, vocational, or secondary school, college, community college, university, or any school bus, in or on the real property comprising public housing or any other governmental assisted housing, within a motor vehicle, or in any structure or building which contains rooms furnished for the accommodation or lodging of guests, and kept, used, maintained, advertised, or held out to the public as a place where sleeping accommodations are sought for pay or compensation to transient guests or permanent guests.

Trafficking Second Degree

Trafficking in the second degree is committed in five distinct ways: (1) by possessing, (2) having under one’s control, (3) purchasing, (4) attempting to purchase, or (5) bringing into the state, certain quantities of heroin, coca leaves, cocaine salts and related substances, cocaine base, LSD, PCP, marijuana, amphetamine, methamphetamine, methylphenidate, or “ecstasy.” The offense is a class C felony for some quantities of the controlled substance, and a class B felony for other, larger, quantities. For example, a person is guilty of trafficking drugs in the second degree if he possesses more than eight grams, but less than 24 grams, of a mixture or substance which contains cocaine base; possession of 24 grams or more is still trafficking in the second degree, but carries the class B range of punishment.

Because trafficking drugs in the second degree usually is charged on the basis of possession, the State must prove both the minimum weight of the substance involved, as well as the defendant’s knowing possession; recklessness will not suffice.²¹ This mental state is required for all categories of trafficking defined by the statute, including “bringing into the state.” However, when possession is charged, the state need not prove that the defendant knew the quantity of drugs in his possession; the culpable mental state is required only for the act of possession.²²

Because the weight of the substance possessed is an element of this offense, simple possession, which shares all elements except the weight of the substance, is a lesser-included offense of trafficking in the second degree.²³

579.068. Trafficking Drugs, Second Degree:

1. A person commits the offense of trafficking drugs in the second degree if, except as authorized by this chapter or chapter 195, such person knowingly possesses or has under his or her control, purchases or attempts to purchase, or brings into this state:

(1) More than thirty grams but less than ninety grams of a mixture or substance containing a detectable amount of heroin;

(2) More than one hundred fifty grams but less than four hundred fifty grams of a mixture or substance containing a detectable amount of coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; cocaine salts and their optical and geometric isomers, and salts of isomers; ecgonine, its derivatives, their salts, isomers, and salts of isomers; or any compound, mixture, or preparation which contains any quantity of any of the foregoing substances;

(3) More than eight grams but less than twenty-four grams of a mixture or substance described in subdivision (2) of this subsection which contains cocaine base;

(4) More than five hundred milligrams but less than one gram of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(5) More than thirty grams but less than ninety grams of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(6) More than four grams but less than twelve grams of phencyclidine;

(7) More than thirty kilograms but less than one hundred kilograms of a mixture or substance containing marijuana;

(8) More than thirty grams but less than ninety grams of any material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system: amphetamine, its salts, optical isomers and salts of its optical isomers; methamphetamine, its salts, optical isomers and salts of its optical isomers; phenmetrazine and its salts; or methylphenidate; or

(9) More than thirty grams but less than ninety grams of any material, compound, mixture, or preparation which contains any quantity of 3, 4- methylenedioxymethamphetamine.

2. The offense of trafficking drugs in the second degree is a class C felony.

3. The offense of trafficking drugs in the second degree is a class B felony if the quantity involved is:

(1) Ninety grams or more of a mixture or substance containing a detectable amount of heroin; or

(2) Four hundred fifty grams or more of a mixture or substance containing a detectable amount of coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; cocaine salts and their optical and geometric isomers, and salts of isomers; ecgonine, its derivatives, their salts, isomers, and salts of isomers; or any compound, mixture, or preparation which contains any quantity of any of the foregoing substances; or

(3) Twenty-four grams or more of a mixture or substance described in subdivision (2) of this subsection which contains cocaine base; or

(4) One gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD); or

(5) Ninety grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP); or

(6) Twelve grams or more of phencyclidine; or

(7) One hundred kilograms or more of a mixture or substance containing marijuana; or

(8) More than five hundred marijuana plants; or

(9) Ninety grams or more but less than four hundred fifty grams of any material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system: amphetamine, its salts, optical isomers and salts of its optical isomers; methamphetamine, its salts, optical isomers and salts of its optical isomers; phenmetrazine and its salts; or methylphenidate; or

(10) Ninety grams or more but less than four hundred fifty grams of any material, compound, mixture, or preparation which contains any quantity of 3,4- methylenedioxymethamphetamine.

4. The offense of trafficking drugs in the second degree is a class A felony (a prison term of years not less than ten years and not to exceed thirty years, or life imprisonment;) if the quantity involved is four hundred fifty grams or more of any material, compound, mixture or preparation which contains:

(1) Any quantity of the following substances having a stimulant effect on the central nervous system: amphetamine, its salts, optical isomers and salts of its optical isomers; methamphetamine, its salts, isomers and salts of its isomers; phenmetrazine and its salts; or methylphenidate; or

(2) Any quantity of 3,4-methylenedioxymethamphetamine.