When a DCS w/in 1000 feet of a school is based on a Boyd delivery (that is, there is not a completed delivery but a substantial step towards a delivery), I suspect many of us erroneously compartmentalize two things we shouldn't. What I mean is, I think we first determine whether or not there was evidence of a substantial step toward a delivery and, if there was, whether defendant was within 1000 feet of a school.
But if we treat those two questions as separate, we potentially give up a possible defense in some DCS w/in 1000 feet of a school cases. Rather, we should ask ourselves -- did the substantial step take place within 1000 feet of a school?
How is that different? Well, assume defendant obtains substantial amounts of drugs, weighs them, bags them, makes arrangements to sell them, and all of this occurs far away from a school. But at some point, some small step occurs within 1000 feet of a school, and that's when he is busted. The state can easily prove a substantial step for a delivery. The state can also prove defendant was within 1000 feet of a school. But can the state prove that the "substantial step" occurred within 1000 feet of a school? Do all the steps that were taken before defendant was within 1000 feet of a school accumulate, so that -- even if the obtaining and weighing and bagging occurred somewhere else -- those steps can be counted toward determining if a substantial step has been taken near the school?
There are plenty of cases where this analysis will not help much. But I can imagine some cases where it would. The key steps a defense attorney would need to take are: (1) asking for a lesser-included of DCS; (2) asking for a jury instruction that states that all steps client took towards delivery can be considered in determining if there was a substantial step towards delivery, (3) but also asking for a jury instruction that says that only the steps taken within 1000 feet of a school should be considered in determining if defendant took a substantial step towards delivery within 1000 feet of a school.
What support do I have for the argument? The statute itself, the definition of attempt and the Boyd case itself. Altogether, they suggest that substantial steps toward a delivery must themselves occur within 1000 feet of a school, not merely the most recent step.