It is illegal to possess certain controlled substances as outlined under the California Health and Safety Code 11350 HS. Controlled products include narcotics and other drugs such as Heroin, Peyote, opiates, Cocaine, and some hallucinogenic products. The law also prohibits the possession of some prescription drugs if you do not have a valid prescription. Some of the commonly abused prescription substances include Oxycodone, Hydrocodone, and Codeine. Drug possession attracts hefty penalties, including imprisonment, fines, and probation. The San Diego Criminal Attorney assists persons facing drug possession charges.
Overview of Drug Possession
Under California law, you cannot be guilty of drug possession unless the prosecutor proves that you had control over the drug and that you were aware of the presence of the drug. The prosecutor must also prove that you were aware of the nature of the drug as a controlled substance. The drug must be adequate to be used as a controlled product.
Definition of Possession
Under California law, the legal definition of possession has three different meanings. You can either be guilty of actual, constructive, or joint possession of a drug. It is illegal to possess a drug under any of the three definitions of possession.
You are in actual possession of a drug or a controlled product if you have direct or immediate physical control over it. For example, you are in direct possession of a drug if the drug is in your bag, your pocket, or within any part of your body, such as your body cavity. Actual possession means that the controlled substance is in your person. You may still be guilty of actual drug possession if the law enforcement officer establishes that the drug was on you shortly before his/her arrival. For instance, you may have some drugs in your pocket and upon seeing the police; you drop the drugs to the ground. You may still face actual drug possession charges as long as the police can prove that you did possess the drug beforehand. The charges may also apply if you ingest a drug to avoid an arrest.
If the drugs are not on you, but they are found in a location over which you exercise control, you may be guilty of constructive drug possession. The control may be either direct or indirect control. For example, the police may raid your home while you are away and discover drugs therein. You may be guilty of constructive drug possession since you are in control of your house. You may face charges even though you were away when the police discovered the drugs. However, if you have a roommate and the drugs were found in his/her drawer, you may not face constructive drug possession charges since your roommate's drawer is not under your control.
Under joint drug possession, you may face charges if you share either actual or constructive drug possession with another person. If the police find drugs in the living room of a house you share with an intimate partner or a roommate; you may be guilty of joint constructive possession of drugs. Similar charges may apply if the law enforcement officers find drugs in a shared refrigerator. If the law enforcement officer arrests you and your friend for sharing a needle full of drugs, you may be guilty of actual joint possession of drugs.
The crime of drug possession requires you to know that you are in possession of drugs. If you are not aware of the presence of the drugs, you are not guilty of drug possession. For example, you may give your vehicle to your friend, and upon returning the vehicle to you, your friends forget some drugs in the vehicle. If the law enforcement officers arrest you for drug possession, you may point out that you were not aware of the presence of the drugs.
You are only guilty of possession if you possess a significant amount of a controlled substance. Therefore, small traces of a drug that cannot yield intoxication effects are not enough to make you guilty of drug possession. As long as the amount of the drug is not enough to consume it, you cannot be guilty of drug possession.
Under California law, possession of a drug/controlled product is a misdemeanor offense. A drug possession conviction may lead to imprisonment of up to one year in county jail. You may also pay a maximum fine of $1,000.
In some instances, you may face felony charges for a drug possession depending on your criminal history. For instance, if you have a prior conviction for serious crimes such as Murder, violent sexual offenses, or Child Molestation, your drug possession charges will automatically be felonious. A felonious drug possession charge may attract a longer imprisonment period of sixteen months, two years, or three years in state prison.
Before the November 2014 passage of Proposition 47, a voter's initiative, all drug possession charges under 11350 HS were felonies. Persons who face felony charges for possessing drugs before the passage of Proposition 47 may appeal to have the court reduce their felony charges to a misdemeanor.
Other Drug Possession Offenses
In addition to drug possession as outlined under Health and Safety Code 11350 HS, there are other common drug possession crimes in California. You may face charges for these offenses instead of drug possession charges or alongside drug possession charges. Some of the common offenses include:
Possession or Purchasing Controlled Products for Sale
Under the California Health and Safety Code 11351 HS, it is illegal to possess or purchase drugs with the intent of selling them. This is a more serious offense in California that possessing drugs for your personal use. Committing a drug possession crime Health and Safety Code, 11351 HS automatically attracts felony charges. Unlike in a case of possessing drugs for your personal use, drug diversion is not available in a case that involves purchasing drugs for sale.
The penalties for an offense under Health and Safety Code 11351 HS include probation with a mandatory one year in county jail. You may also face longer imprisonment ranging from two years, three years or four years in county jail.
To be guilty under Health and Safety Code 11351 HS, the prosecutor must prove that you possessed or purchased the drug, and you were aware of the nature of the drug as a controlled substance. The prosecutor must also prove that you had enough of the drug to use or sell. Also, it must be evident that you possessed and intended to sell a drug or that you purchased and intended to resell the drug.
How can the prosecutor prove your intent to sell the drugs? In drug cases under Health and Safety Code 11351 HS, the most important aspect entails proving the defendant's intent to sell the drugs. How can you distinguish drug possession for personal use and drug possession for sale? Some factors that can help to prove intent to sell include:
Quantity of the Drug- Your intent to sell can come out depending on the quantity of the drug you possess. If you have a much higher quantity amount of drug than an average person would consume, it may be clear that you have the intention to sell the drug. In arguing against this assumption, many people argue that a habitual drug user may store up a high quantity of drugs to ensure that they do not run out of stock.
Packaging of the Drug-It can be easy to prove intent to sell based on the packaging of a drug. If a drug is packaged in numerous distinct packages, it may be clear that the defendant intended to sell the drugs. Drug sellers often pack drugs in bundles, baggies, or balloons. If the law enforcement officers trace numerous drug-packaging materials in your premises, they may conclude that you possess drugs for sale, not for personal use.
Drug Instruments- Presence of instruments such as syringes, pipes, or other drug-related paraphernalia may work for or against you. For instance, the presence of syringes, which you use to inject yourself, may prove that you possess the drugs for personal use. However, the presence of items such as weighing scales, and tools used to diluting, separating, and packaging drugs is an indication that you possess the drugs for sale.
You are under the influence of drugs- If you are intoxicated at the time of arrest, it may be an indication that you possess the drugs for personal use and not for sale. However, this may not be proof since most drug sellers also consume drugs. It is therefore common to find a drug seller operating under the influence of drugs.
Aggravating Factors to Drug Possession for Sale
If you face a conviction for possessing and purchasing cocaine for sale, the applicable imprisonment may either be 3, 4, or 5 years in county jail. The court may also require you to pay hefty fines that may amount to $20,000.
After violating Health and Safety Code 11351 HS and the drug involved is heroin, cocaine, or cocaine base, you may face an additional three years of imprisonment if you possess a drug amount that exceeds a weight of one kilogram. If the drug exceeds four kilograms, you may face an additional five years of imprisonment. You may face an additional ten years of imprisonment if the drug exceeds ten kilograms. If the drug you possess for sale is more than twenty kilograms, you may face an additional fifteen years of imprisonment. You may face an additional twenty years of imprisonment for drugs exceeding a weight of forty kilograms and twenty -five years for drugs exceeding eighty kilograms. For an additional conviction based on the weight enhancements, you may face additional fines of up to $8,000,000.
You may face a consecutive additional three-year prison term for every prior felony offense involving drugs that are not for personal use.
Possession of a Controlled Substance While Armed
Under the California Health and Safety Code 11370.1 HS; it is illegal to possess a controlled substance while you are armed. If you are knowingly in possession of a loaded firearm, it is illegal to possess some drugs. Therefore, other than charges for drug possession, you may face additional charges for possessing drugs while armed.
Some of the specific products that you should not possess while armed include Cocaine, Heroin, Methamphetamine, or PCP, among others. The applicable consequences for this offense may include imprisonment of either 2, 3, or 4 years in a California State prison. You may also pay fines of up to $10,000.
An additional consequence for a conviction under California Health and Safety Code 11370.1 HS is a lifetime ban on owning a firearm. For a conviction of possessing drugs while armed, you can qualify for a drug diversion program instead of jail time.
Depending on your criminal history and the facts that surround your case, you may be eligible for formal felony probation instead of prison after committing a crime under Safety Code 11370.1 HS. It is important to note that if the court grants you felony probation, it is mandatory for you to spend at least one year in county jail.
Felony probation may include strict conditions. Some conditions may include impromptu drug testing and undergoing a drug counseling and treatment program. The law enforcement officers may also conduct unexpected searches on your premises without warning. The probation may include regular meetings with a probation officer and conducting community service work. While on probation, you must not possess or use drugs or break other laws as this may make the court suspend your probation and recommend jail time instead.
Simple Possession of Methamphetamines
It is an offense under the California Health and Safety Code 11377 HS to possess Methamphetamines, commonly known as meth or any other drug covered under HS 11378. Simple possession of meth is a misdemeanor offense under California law and may be punishable with up to one year in county jail. You may also incur a fine of up to $ 1,000 for simple possession of meth. Simple possession of meth is eligible for a drug diversion instead of jail.
Possession of Methamphetamines with the Intent to Sell
Under the California Health and Safety Code Health and Safety Code 11378 HS, the law prohibits possession of meth with the intent to sell. Possession of meth with intent to sell is a more serious offense than simple possession of meth and has higher penalties. If you commit an offense under Health and Safety Code 11378 HS, the fine may amount to $10,000. You may also serve an imprisonment of 16 months, two years, or three years in jail.
For a conviction of possessing meth with intent to sell, you are not eligible for a drug diversion program.
The prosecutor can prove your intent to sell meth based on your statements/ word of mouth. For instance, you may face charges if the prosecutor or a witness quotes you saying that you intend to sell the meth. If you have high quantities of meth, it is an indication that the meth is for sale. The packaging of meth may also indicate whether the drug is for sale or not.
Legal Defenses for Drug Possession Charges
After a drug possession conviction, you can come up with a good defense strategy to help prove your innocence or advocate for a reduction of your charges. With the help of an attorney, you may argue that:
You had a Drug Prescription
You cannot face charges for drug possession if you prove that you had a legal prescription for the drugs. Under the California Health and Safety Code 11350 HS, you are only innocent if your drug possession is in line with your prescription. You cannot claim that the drugs a valid if you have a fake prescription or if you violate your doctor's drug purchase instructions. If you are in possession of more drugs that your prescription authorizes, you may face drug possession charges. You may also be guilty of being in possession of another person's legally prescribed drugs. You should only be in possession of your own prescription drugs.
Temporal Possession of the Drugs
You may also defend yourself by asserting that you only possessed the drugs temporarily and you intended to dispose of the drugs. You may argue that you intended to dispose of the drugs to prevent their illegal possession by another person. You have to prove that you did not possess the drugs to prevent law enforcement officers from tracing them. If you are in control of the drugs, this defense strategy may not work if you get rid of the drugs after realizing their imminent seizure by law enforcement officers. For example, if you flush drugs down the toilet after seeing the law enforcement officers, it may be hard to prove your intention to dispose of the drugs.
You did not Know
You may also argue that you were not aware that you possessed the drug. For example, Kelly gives her jacket to her friend who uses drugs. Her friend places some drugs in the pocket of Kelley's jacket and returns the jacket to Kelley without removing the drugs. If law enforcement officers search Kelley and get drugs in her jacket pocket, Kelly may defend herself by arguing that she was not aware that the drugs were present.
You may also argue that you did not understand the nature of the controlled product or the fact that the controlled product was a drug. If the police arrest you and you are clueless that the substance you possess is a drug, you may not face drug possession charges. However, certain behavior, such as fleeing from the police or refusing to undertake a drug test may be clear indications that you are aware of the nature of the products you possess. It may also be hard to prove that you were not aware of the nature of a controlled substance if you have a prior record of drug possession.
Unlawful Search or Seizure
You may also defend yourself against California drug possession charges by arguing that you underwent an illegal search and seizure. You may use this defense strategy if the law enforcement officers illegally arrest you. You may also use this strategy if the law enforcement officer did not have a search warrant. You may also argue that the police's search went beyond the scope outlined in the search warrant. You may also argue that the arresting officer used excessive force than necessary. After establishing that an illegal search and seizure took place, your attorney may prescribe dismissal of the evidence against you or dismissal of the whole drug possession case.
Lack of Intent to Sell
If you are facing charges for possessing a controlled substance for sale, Health, and Safety Code 11351 HS, you may argue that you did not intend to sell the controlled substance. You can argue that you only possessed the drugs for personal use and not for sale as this could lead to a reduction of your charges. Possessing a drug for personal use is a much lesser offense than possessing controlled products for sale, and it may allow you to participate in a drug diversion program.
Methamphetamines were for Your Personal Use
If you are facing a conviction for possession of meth with intent to sell, you may argue that the meth was for your personal use. By proving that the meth was not for sale, you may face lower drug possession charges. If you are an authorized medical practitioner, you may argue that the meth was for approved medical use as per California laws and the federal drug laws.
What is Drug Diversion?
If you are facing drug possession charges under California Health & Safety Code 11350 HS, you may negotiate for a drug diversion program. After committing a non-violent drug possession offense, a drug diversion program may allow you to undergo a drug treatment program instead of going to jail. The court may dismiss your drug possession charges if you complete a drug diversion program. A drug diversion officer is not available to all offenders, especially persons who are guilty of repeat drug offenses.
Contact a San Diego Criminal Lawyer Near Me
Drug possession is a serious offense, and the associated consequences can be detrimental. It is, therefore, important to seek legal representation if you are facing drug possession charges. At the San Diego Criminal Attorney, we can walk with you and help you develop a proper defense against your drug possession charges. Contact us at 619-880-5474 and speak to one of our attorneys today!