Interviewer: At what point does a drug case become a federal case, as opposed to a state case?

Which Jurisdiction Is Investigating?

Brian Geno: It’s not like a case would evolve from state to federal. It typically is up to which jurisdiction is investigating the crime. If a person is being investigated by the FBI, or the Alcohol Tobacco and Firearm Administration, or the Federal Park Police; those are all federal agencies. If those organizations and those law enforcement officers are doing the investigating, then the charge would likely be federal and prosecuted in the Federal Court.

Which Agency Made the Arrest?

If a person is caught by the state police or county police—then that would typically be heard in the state courts. A lot of times, a person gets investigated by the FBI or the ATF if their crime involves interstate commerce of the drug or if the quantity is quite large.

If the person who is under federal investigation is transporting drugs across state lines or the suspect is a person the federal government wants for their own purposes, they could just draw that person into that federal loop. It is my experience that the federal government does not like to charge someone for a federal crime when they are already being prosecuted for state crimes.

Some Charges Can Migrate from State Level to Federal Level and Vice Versa

I have had cases where there was a state charge but we asked the federal government to prosecute because of the deals that they wanted to make for my client who was helping with the federal investigation. I have also had cases where someone was charged federally and it was ultimately prosecuted by the state because of a deal we made.

A possession of cocaine charge in the federal system can be a misdemeanor whereas possession of cocaine in the Virginia state system is a felony. There may be slight variations but they’re both illegal depending on which jurisdiction is prosecuting. For a defendant with criminal charges, It may be the most important factor to know whether you can steer the case to a more optimal venue (federal or state court).

Are Cases Involving Prescription Drugs Prosecuted the Same as Cases Involving Illegal Drugs?

Interviewer: Are prescription drug cases prosecuted the same way illegal drug cases are prosecuted in the court system?

Drugs, Both Illegal and Prescription, Are Classified into Schedules That Determine to Severity

Brian Geno: Yes they are. Usually prescription drugs are considered what they call Schedule III. Schedule IV or Schedule V controlled substances / drugs. Those different schedules represent the severity of the illegality of the drug. It gets classified as III, IV or V based upon its legitimate medical and non harmful effect. Schedule I, for instance has no medical purposes and is very harmful. Presecription drugs like Oxycodone have beneficial effects but are harmful if abused so they go on the Schedule III list. But, whether it’s Schedule III legal by prescription, or whether it’s Schedule III illegal, the police are going to handle criminal possession or criminal distribution of it in the same way.

The Courts May Show More Leniency to an Individual Who became Dependent on a Prescription Drug

It’s going to be handled the same by the police and it’s going to be handled the same by a defense attorney as well. The courts, when sentencing somebody for possession of a prescription drug however can have more sympathy for a person who obtained the drugs through a prescription and wound up misusing it.

If it’s a person who bought it illegally and they’re just trying to sell what is otherwise an illegal drug, then the court won’t dispense much mercy on that person. But in all other aspects, they are handled very similarly.