San Diego Criminal Attorney is a top-ranked criminal defense law firm dedicated to serving clients in and around the San Diego area. The firm’s attorneys are highly proficient in California criminal law and have extensive experience in handling cases related to all types of drug crimes. Various drug crimes include the possession, distribution, and manufacture of illicit drugs. Our experts at San Diego Criminal Attorney are ready to guide you through the legal process of any type of drug crime you may be involved with.
What Is a Drug Crime?
A drug crime refers to any offense which violates a law or regulation surrounding legally-classified controlled substances. “Controlled substances” are drugs and chemicals which have been deemed to have dangerous effects on the health and welfare of the American people when illicitly produced and when diverted from their legitimate medical purposes. The U.S. government regulates and prohibits the possession, distribution, and manufacture of controlled substances according to the United States Code (USC) Controlled Substances Act and enforces its laws through the Drug Enforcement Administration (DEA) of the U.S. Department of Justice.
What Are Examples of Controlled Substances?
The most common controlled substances associated with drug crimes in the U.S. include marijuana, LSD, ecstasy, heroin, cocaine, methamphetamine, and prescription painkillers such as Vicodin, Morphine, Percocet and Codeine.
The official list of controlled substances is updated on a yearly basis to reflect ongoing research regarding the proven medical use and abuse/dependency potential of different substances. The current list of controlled substances organized by Drug Schedule can be found in Section 1308 of the Title 21 Code of Federal Regulations (CFR) and an alphabetical list of all controlled substances can be found here.
Disclaimer: Note that these lists are NOT comprehensive due to the innumerable derivatives and alternative names for many controlled substances. This means that certain drugs which are not listed on the DEA's website can still be treated as a controlled substance and subject you to criminal prosecution.
What Are Drug Schedules?
Controlled substances are divided into five different categories, known as schedules based on two criteria: (1) the drug’s accepted medical use and (2) the drug’s abuse/dependency potential.
Of the two criteria, the drug’s abuse/dependency potential is most highly considered when determining which schedule the drug will fall under. The higher the substance’s potential for abuse and dependency, the lower the number of schedule it is placed in (i.e. Schedule 1 drugs have the highest potential for abuse and the most detrimental consequences of dependency, while Schedule 5 drugs have the lowest potential for abuse and dependency). The schedule of the drug with which you are prosecuted greatly determines the legal consequences you will face under the law.
What is a Schedule 1 Drug?
Substances in this list have a high potential for abuse and (with the exemption of marijuana) do not have a currently accepted medical use. Some common examples of Schedule 1 drugs include:
- LSD (Lysergic Acid Diethylamide)
- Marijuana (Cannabis)
What is a Schedule 2 Drug?
Schedule 2 drugs have a high potential for abuse. Abuse can lead to substantial physical and/or psychological dependence. Some common examples of Schedule 2 drugs include:
- Amphetamine (Adderall®)
- Methamphetamine (Desoxyn®)
- Methylphenidate (Ritalin®)
What is a Schedule 3 Drug?
Schedule 3 drugs have a moderate potential for abuse. Abuse can lead to moderate or low physical dependence or high psychological dependence. Some common examples of Schedule 3 drugs include:
- Anabolic steroids (Depo®-Testosterone)
- Products with less than 90mg of codeine per dosage unit (Tylenol with Codeine®)
What is a Schedule 4 Drug?
Substances in this list have a relatively low potential for abuse. Some common examples of Schedule 4 drugs include:
- Alprazolam (Xanax®)
- Diazepam (Valium®)
- Lorazepam (Ativan®)
- Temazepam (Restoril®)
What is a Schedule 5 Drug?
Schedule 5 drugs have the lowest potential for abuse amongst all controlled substances. The substances in this list are mainly medicinal drugs which contain minor quantities of certain prohibited narcotics. Some common examples of Schedule 5 drugs include:
- Cough suppressants (Robitussin AC®)
This system of categorizing controlled substances according to schedules facilitates the process of administering sentences for different drug crimes. Legislatures can refer to standardized punishments for drug crimes according to their different schedules rather than re-evaluating the medical use and abuse/dependency potential of a drug during every drug trial. Drug schedules also allow for greater continuity within U.S. drug laws since drugs can be moved around different schedules in response to new research findings, rather than having to reform the drug laws themselves.
What Is a Drug Charge?
A drug charge is a formal accusation made against an individual or group for having violated laws concerning a controlled substance. Drug charges can be divided into three general categories: (1) possession of drugs, (2) distribution of drugs, and (3) manufacture of drugs.
Possession of Drugs
According to California Health and Safety Code 11350, possession of a controlled substance without a valid prescription is illegal. Crimes of drug possession in California are usually handled according to two broad categories: simple possession and possession with intent to sell. While simple possession is treated ordinarily as a drug possession crime, the crime of possession with intent to sell is often charged as a crime of drug distribution.
What Does the Prosecutor Have to Prove to Charge You for Drug Possession?
Three things must be proven in order for a prosecutor to charge you for a crime of drug possession. They must prove that:
- You possessed a controlled substance (either in person, in your home, in your car, in your office, or in a space you control)
- You were aware that you possessed the drug and you were aware of its character (i.e. that it is a controlled substance)
- You possessed a useable amount of the drug
- You did not have a valid prescription for the controlled substance
What Is the Sentence for Drug Possession?
Once you have been proven guilty for knowingly possessing a controlled substance, the sentence you receive will depend on the type and amount of drug you possessed as well as the purpose for which you possessed the drug (i.e. simple possession or possession with an intent to sell).
If you are charged with a crime of simple possession, that is, if you possess a small amount of the drug intended for personal use, you will likely be charged with a misdemeanor, especially if you are a first-time offender. A misdemeanor is a far less serious offense than a felony and will subject you to a fine of up to $1000 and/or a sentence of up to one year in county jail. In certain cases, you may qualify for a drug diversion treatment instead of serving jail time.
However, if you are charged with a crime of possession with intent to sell, you will be sentenced according to the regulations for a crime of distribution. (See: “What Does a Prosecutor Have to Prove to Charge You for Drug Distribution,” to learn how possession with intent to sell can be proven). In contrast to simple possession, possession with intent to sell is often charged as a felony under the law. A felony conviction subjects you to a longer jail sentence, varying between 16 months and 3 years, depending on the gravity of your current drug charge.
An additional factor that can play a decisive role in the legal outcome of your drug trial is your criminal record. Even if you are charged merely with a crime of simple possession, you can be convicted of a felony if you have committed a violent crime in the past (e.g. murder, vehicular manslaughter, or a sex crime) or if you have a prior conviction for a drug crime.
What Are the Common Legal Defenses Against a Crime of Possession?
In light of the factors which must be proven in order to be charged for a crime of drug possession, common legal defenses include:
- Lack of possession: You did not actually possess the drug
- Lack of knowledge: You were not aware that you possessed the drug or you were not aware of its character (i.e. that it is a controlled substance)
- Valid prescription: You had a valid prescription for the amount of the drug you possessed
- Illegal search and seizure: You were searched unlawfully by prosecutors who did not have a valid search warrant or who searched beyond the scope of their warrant
The legal outcome of a drug possession prosecution varies widely case by case depending on the mentioned factors. However, in general, if a prosecutor can prove that you possessed drugs with the intent to distribute, the outcome will often be far worse than a crime of simple possession.
Distribution of Drugs
Illegal distribution of drugs, also known as drug trafficking, includes the selling, furnishing, administering, transporting, and importing of controlled substances. This includes the illegal distribution of common prescription drugs, such as painkillers or sleeping pills, which have been categorized as controlled substances due to their potential for abuse and dependency.
What Does the Prosecutor Have to Prove to Charge You for Drug Distribution?
A prosecutor can prove a crime of drug distribution by providing various circumstantial evidence including the possession of a large amount of a controlled substance, the presence of packaging materials or weighing devices, the presence of large amounts of cash or weapons at the scene of the arrest, or the presence of paraphernalia at the scene of the arrest. Note that any evidence which has been obtained illegally (e.g. tapped voice recordings without consent) will not be admissible in court as evidence.
What Is the Sentence for Drug Distribution?
The sentence you receive for drug distribution will depend on a variety of factors including the type and amount of drug you distributed, whether minors were involved in the transaction, and the location where the transaction took place. Typically, trafficking that occurs in the proximity of playgrounds, places of worship, drug treatment facilities, or homeless shelters can add one to two years to your prison sentence.
Another determinant factor in your sentence for a crime of distribution concerns the amount of drug which is distributed. Most drug crimes in California surround smaller-scale transactions of controlled substances made by individuals in a process commonly referred to as “drug dealing.” The sentence for petty drug dealing is often far less severe than for large-scale trafficking. For example, dealing less than 1 kg of cocaine will subject you to three years in prison, while trafficking more than 80kg of cocaine can lead to a sentence of 25 years in prison. The sentence for drug distribution ranges widely from three years to “more than life in prison.”
What Are the Common Legal Defenses Against a Crime of Distribution?
Common legal defenses for drug distribution include arguments for illegal search and seizure (without or beyond the scope of a warrant), unlawful detainment without probable cause, and police misconduct (e.g. “planting” evidence or giving false account).
Manufacture of Drugs
The manufacturing of drugs and narcotics is counted as a felony under Health and Safety Code 11379.6. Manufacturing includes producing, compounding, processing, or cultivating any controlled substance. Due to the multi-pronged process of drug production, the crime of drug manufacturing encompasses a wide array of criminal involvement. Individuals who are involved in the supply of chemicals and equipment, as well as individuals who are directly involved in the cultivation or production of illicit drugs, are all subject to being charged with a felony.
What Does the Prosecutor Have to Prove to Charge You for Drug Manufacturing?
In order to be convicted for drug manufacturing, the prosecutor must prove both the possession of chemicals or compounds involved in drug production as well as the intent to manufacture. For example, the mere possession of marijuana seeds cannot convict you with a crime of manufacturing. However, if prosecutors find accompanying equipment or written plans of production within your residence, they can establish a probable intent to manufacture the marijuana.
What Is the Sentence for Drug Manufacturing?
Drug manufacturing may result in steep fines of up to $50,000 and a prison sentence of up to 7 years. This sentence increases incrementally depending on the amount of drug manufactured, where the drug was processed (i.e. near children), or whether people were injured or killed in the process of manufacturing.
What Are the Common Legal Defenses Against a Crime of Manufacturing?
The most legally viable defense against the crime of manufacturing is having a permit to possess certain chemicals or narcotics. Upon presenting legal authorization for possessing those items, the defendant must prove that they had no intention to misuse those items to manufacture controlled substances. Another common defense is proof of valid prescription for the amount of drug you have in your possession.
Is Marijuana Illegal in California?
Due to the prevalence of marijuana-related drug charges in California, it is important to make special note of marijuana drug laws. Much of the confusion surrounding marijuana drug crimes results from simplified public assertions regarding the legalization of marijuana in California. In November 2016, voters in California approved the Adult Use of Marijuana Act (AUMA) which made it legal for adults over the age of 21 to possess, use, cultivate, sell and distribute marijuana in limited quantities, for medicinal and recreational purposes. However, these activities must be performed within the confines of the law with proper identification and registered licensing as detailed in Senate Bill no. 94. Although AUMA has allowed for limited circulation of marijuana within the State, marijuana is still listed as a Schedule I drug due to its potential for abuse and dependency, and thus remains a carefully regulated substance.
Currently, in the state of California, it is still illegal to:
- Possess any marijuana if you are under the age of 21
- Possess more than 28.5 grams of marijuana if you are of age
- Use marijuana while operating a vehicle
- Cultivate over 6 marijuana plants
- Cultivate, sell, or transport any marijuana without a proper permit
- Sell marijuana to a minor
Offenders who possess marijuana underage or possess a quantity that exceeds 28.5g can be imprisoned in a county jail for up to 6 months and/or face a fine of $250-$500. Cultivation and distribution of marijuana without a license is also punishable by law and can lead to 6 months in jail and a fine of $500-$1000. Selling marijuana to a minor is always treated as a felony and is punishable by 3 to 7 years in jail depending on your previous criminal record and the age of the minor involved.
Exemptions to these drug charges are reserved only for patients and primary caregivers who have valid medical warrants for marijuana. With a valid medical warrant, patients and primary caregivers can lawfully possess and cultivate reasonable amounts of marijuana that are appropriate to a medical professional’s recommended doses. However, processing of more than the necessary amount and sale of marijuana is still prohibited by the law.
Convictions for drug crimes can have a profound and enduring effect on your life opportunities. They not only affect your chances of employment, but hinder you from receiving federal loans for education, credit card debts, and other personal amenities. It is crucial to navigate a drug charge with utmost attentiveness so as to avoid unnecessary and unfair prosecutions.
Finding a Drug Crime Attorney Near Me
At San Diego Criminal Lawyer, we understand the fear and tension that can surround various drug charges. If you are in need of representation against a charge for illegally possessing, distributing or manufacturing a controlled substance, call us today at 619-880-5474 to get connected to one of our legal experts. Our team of well trained and highly trusted attorneys is ready to fight alongside you at every stage of your drug crime case.