Main/A new way of looking at DCS within 1000 feet of a school

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.
{{wl-publish: 2018-04-09 14:24:52 -0700 | Ryan@ryanscottlaw.com:Ryan  Scott  }}