8.1 Introduction to Drug Offenses
Revised to May 10, 2012
The statutes in Title 21, Chapter 420b, Dependency-Producing Drugs, define the entire regulatory scheme for controlled substances, encompassing a broad range of prohibited acts from illegal street sales to improper dispensing of such substances by doctors or pharmacists. The statutes criminalizing the distribution of controlled substances (§§ 21a-277, 21a-278a, and 21a-278a) include numerous verbs that describe the variety of transactions that may be punishable. They are:
transports with the intent to sell or dispense
possesses with the intent to sell or dispense
administers to another person
Note that § 21a-278a incorporates § 21a-277 and § 21a-278 but specifies a limited subset of applicable transactions.
Of these, "administer," "prescribe," and "dispense" are defined in § 21a-240 in a very specialized manner that applies to practitioners, which includes doctors, pharmacists, scientific investigators, etc. See § 21a-240 (43). In State v. Jackson, 13 Conn. App. 288, 297 (1988), the information charged the defendant with "possession with the intent to sell or dispense." As the statutory definition of "dispense" makes reference to practitioners, which was not applicable to the defendant, the trial court instructed on the ordinary meaning of the word "dispense." The Appellate Court said that this was improper when there was an applicable statutory definition. These verbs should, therefore, only be used in a case involving a practitioner.
Because the trial court is primarily faced with illegal street sales, the instructions in this section are limited to "sells" and "possesses with the intent to sell." The definition of "sale" in § 21a-240 (5) encompasses a broad range of transactions. See State v. Wassil, 233 Conn. 174, 193 (1995) (a gift of narcotics comes within the meaning of the statutory definition of sale).
"Controlled substance" is defined as any "drug, substance, or immediate precursor in schedules I to V, inclusive, of the Connecticut controlled substance scheduling regulations adopted pursuant to section 21a-243." There are numerous controlled substances within these schedules. The trial court should ascertain which controlled substance is alleged. If the substance is within such schedules, the court may instruct that if the jury finds it proved that the substance is what it is alleged to be, it is included within the definition of a controlled substance. State v. Nieves, 186 Conn. 26, 31 (1982); State v. Vessichio, 197 Conn. 644, 650 (1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986); State v. Kiser, 43 Conn. App. 339, 359-60, cert. denied, 239 Conn. 945 (1996), cert. denied, 520 U.S. 1190, 117 S.Ct. 1478, 137 L.Ed.2d 690 (1997).
In some cases, the parties may stipulate to the nature of the substance. See Stipulations, Instruction 2.6-9.
There are statutory definitions for the following substances, which the court may incorporate into the instructions as appropriate, depending on the nature of the substances alleged in the information:
In some cases, the quantity of the substance determines the punishment. In these cases the jury will have to make a determination that a certain amount of a given substance was involved. Note that effective July 1, 2011, the possession of less than one-half ounce of a cannabis-type substance is an infraction.
Distribution of any controlled substance other than marijuana (§ 21a-277) is a lesser included offense of distribution of certain quantities of specified controlled substances (§ 21a-278). State v. Bradley, 60 Conn. App. 534, 546, cert. denied, 255 Conn. 921 (2000).
Possession (§ 21a-279) is a lesser included offense of possession with intent to sell (§ 21a-277) as long as the substances are the same. State v. Hammond, 60 Conn. App. 321, 332 (2000), rev'd on other grounds, 257 Conn. 610 (2001).
Possession of narcotics (§ 21a-279) and possession of narcotics within 1500 feet of a school (§ 21a-279 (d)) are separate offenses. State v. Otto, 50 Conn. App. 1, 20, cert. denied, 247 Conn. 927 (1998). But possession of cocaine under § 21a-279 (a) is a lesser included offense of possession of cocaine with intent to sell under § 21a-278 (b) and possession with intent to sell within 1500 feet of a school under § 21a-279 (d). State v. Barnes, 47 Conn. App. 590, 592 (1998).
Possession of two narcotic substances at the same time does not constitute two separate offenses under § 21a-279 (a). State v. Rawls, 198 Conn. 111 (1985).