How can I be charged with drug delivery if the police did not test the drugs?
Can You Be Charged With Drug Delivery If the Police Don’t Have the Drugs?
Many people believe that in order to be charged with drug delivery or distribution in Pennsylvania, the police must have physical evidence of the drugs. It seems logical—no drugs, no case. However, the law allows prosecutors to pursue felony drug charges even if the police never recovered the actual drugs.
This situation often arises in cases involving confidential informants (CIs) or cooperating witnesses who report alleged drug transactions—sometimes years after they occurred. If you’re facing charges based on testimony alone, you may be wondering: Can the Commonwealth convict me of drug delivery without any lab-tested drugs?
The answer, surprisingly, is yes—but the case may still be defensible.
No Drugs? No Problem – According to Pennsylvania Courts
In a standard controlled buy, police supply a CI with marked buy money, the CI purchases drugs from the target, and the drugs are then turned over to police, tested by a lab, and introduced at trial as physical evidence. But in some cases, the drugs are never recovered—either because they were consumed, lost, or the alleged delivery happened long ago.
You might think the lack of physical evidence would prevent charges from being filed. However, Pennsylvania courts have said otherwise.
Case Law: Commonwealth v. Aikens, 118 A.2d 205 (Pa. Super. 1955)
In Aikens, the court ruled that chemical analysis of the substance was not required. The conviction was upheld based solely on the testimony of a habitual heroin user, who stated that the drug she received from the defendant produced the physical effects consistent with heroin use. The court held that this eyewitness testimony was sufficient to support a conviction for drug delivery.
Weak Evidence? Yes. Illegal? No.
While the law allows drug delivery charges without lab-tested drugs, these cases are often considered weaker from an evidentiary standpoint. If the only evidence is the word of a cooperating witness, especially someone with a criminal record or drug addiction, a jury may be less likely to find that person credible.
A strong defense strategy in these cases involves:
Challenging the credibility of the informant or witness
Exposing biases, motives, or prior criminal history of the CI
Highlighting the lack of physical or corroborating evidence
Showing inconsistencies in the informant’s statements
Ultimately, if the jury does not believe the prosecution’s witness, the defendant should be found not guilty.
Charged With Drug Delivery But No Drugs Were Recovered? Call a Defense Attorney
Being charged with a felony drug offense without physical evidence is frustrating and scary—but it’s not the end of the road. At JD Law, our attorneys have been representing individuals accused of drug distribution and delivery in Centre County and throughout Pennsylvania since 2004. We know how to aggressively challenge weak cases and protect your rights at every stage—from pre-charge investigations to jury trials and appeals.
For a free case review, contact JD Law by email or leave a message at (814) 689-9139. Email is the preferred method of communication, as phone calls are directed to voicemail due to the high volume of spam and unsolicited calls.