Prosecutors in California charge drug crimes as misdemeanors or felonies, depending on the circumstances of a case and a defendant’s criminal history. All drug crimes, whether a misdemeanor or felony, are serious, with severe penalties and consequences upon conviction. However, a felony conviction will have more severe penalties than a misdemeanor.

If you face felony drug-related charges, it is helpful to find out why the prosecutor filed felony charges instead of misdemeanor charges against you. A competent lawyer can help you with that, as well as navigate all complex legal processes. They will defend your rights and fight alongside you for the best outcome in your case.

Types of Drug Crimes Under California Law

Drug crimes refer to all crimes involving controlled substances under the Controlled Substances Act. They are mainly categorized under possession, manufacturing, and distribution offenses. Prosecutors file varying charges based on the type of drug and the quantity of the drug. Common types of drug crimes in California include the following:

The Possession of a Controlled Substance

This is a crime you commit when you possess, or are in control of, a controlled substance without a valid license or prescription. You can be in simple possession if the amount of the drug in your possession is only enough for personal use. You can also be in possession with the intent to sell when you have more of the drugs than you need for personal use. The amount of the drug determines the intent to sell and also the presence of packaging materials or scales.

Trafficking or Distribution of a Controlled Substance

This happens when you transport, sell, import, or furnish a controlled substance without the authorization to do so. People who sell controlled substances need a legal permit to do so. Their activities are also highly regulated to ensure that they only sell or distribute the substances to the right people and in the right quantities. Doing so without a legal permit or exceeding the provisions of your license can result in serious drug charges.

Cultivation or Manufacturing of Controlled Substances

This happens when you are illegally involved in the production, processing, compounding, or cultivation of a controlled substance. You need a license to grow or produce specific controlled substances in California. Operating a meth lab, or growing more marijuana plants than you are permitted to can result in serious felony charges.

Additionally, prosecutors in California can file other drug-related charges, like the possession of drug paraphernalia, or being under the influence of a controlled drug, against you. The exact type of charge you face depends on the specifics of your case.

Circumstances Under Which You Can Face Felony Drug Charges

When you are arrested for a drug crime, the prosecutor determines whether to file misdemeanor or felony charges, based on the details of your case and your criminal history. A drug charge becomes a felony based on the following factors:

The Nature of the Crime

Typically, some drug crimes are misdemeanors, and others are felonies. Based on the nature of your crime, here are the circumstances under which you can face a felony charge:

  1. If You Are in Possession of a Drug With the Intent To Sell

Generally, the simple possession of a controlled substance is a misdemeanor under the Health & Safety Act 11350. Simple possession mainly means that the drug in your possession, although it is illegal, is only enough for personal consumption. If there is evidence that you intend to sell the substance, the prosecutor will file felony charges under HS 11351. This is a more serious violation that can result in a prison sentence and a hefty court fine.

Possession for sale of a controlled substance is not an easy charge to prove for a court to find you guilty. The prosecutor must prove that you intended to sell, distribute, or give away the substance in your possession. In cases like these, prosecutors rely on circumstantial evidence to obtain a guilty verdict. They can base their arguments on the following facts:

  • That the amount of substances in your possession was more than you need for personal consumption

  • That you were also found in possession of drug packaging materials, or devices like weighing scales

If the court finds you guilty of possession for sale, you will likely face the following penalties:

  • Two, three, or four years in prison, depending on the amount and nature of the drugs in your possession

  • Felony probation for up to five years, given at the discretion of the judge

  • $10,000 in court fines, or more, including penalty assessment fees

A felony drug charge will result in a damaging criminal record that can affect various areas of your life for life. It will also result in infringed gun rights and may have serious immigration consequences for the immigrants.

  1. If the Crime Involves the Sale or Transportation of Controlled Drugs

Remember that the use, distribution, production, and sale of controlled substances are highly regulated because of the physical and mental effects of these substances on consumers. A licensed practitioner must do the sale or transportation of a controlled substance. They must be willing and ready to follow stringent sale or distribution regulations to ensure that consumers only receive enough of the drugs for medicinal or recreational use.

The illegal sale or transportation of a controlled substance will result in criminal charges under HS 11352. The prosecutor needs concrete evidence that you sold, distributed, trafficked, gave away, or furnished a controlled drug without the legal authorization to do so.

Transporting a drug means moving or carrying the drug from one point to another, however slight the distance. You can accomplish this by walking with the drugs in your hands or pocket, riding a bicycle or motorcycle with them, or transporting them in a vehicle or plane.

If the court passes a guilty verdict against you, you will likely face the following penalties:

  • Three, four, or five years in prison

  • Three, six, or nine years in prison if you transported the drugs across state lines

  • Felony probation for five years, if you are eligible

  • $20,000 in court fines

The judge may not sentence you to probation if the following apply in your case:

  • If you face charges under HS 11352 for selling or distributing at least 14.25 grams of a controlled substance containing heroin

  • If the controlled substance is heroin, and you have at least one prior conviction on your criminal record for a crime under HS 11351, or HS 11352

  • If your charges are about the sale or distribution of cocaine or methamphetamine, and you have at least one conviction on your record for the sale of any controlled substance.

If you do not qualify for probation, you must serve your whole sentence in state prison.

The judge can enhance your penalties for the sale or distribution of a controlled substance if there are aggravating factors in your case. Examples of these aggravating factors include the following:

  • If you committed the offense near a homeless shelter or a treatment facility

  • If large quantities of dangerous drugs like cocaine or heroin are involved

  • If you have a prior conviction for a serious drug, ex, or gun crime

  • If you sell or furnish dangerous substances to specific people, like minors, pregnant women, people who have previously been convicted of a felony, or people with a drug or mental problem

  1. If the Crime Is About the Cultivation or Production of a Controlled Substance

The illegal production or cultivation of a controlled substance is a felony. You need a license to manufacture, cultivate, or produce a controlled substance. If not, you risk serious charges under HS 11379.6. This law specifically prohibits the production, compounding, conversion, processing, or preparation of a controlled substance. The law covers any process of the drug manufacturing process, such that you can still be guilty even if you did not complete the production process.

What the prosecutor needs to prove is that you intended to produce, or were involved in any step of the production process. The court does not need to see the final product to deliver a guilty verdict in your case. If you knowingly participate in the initial or subsequent step in the production of a controlled substance without the legal authorization, you could face the following penalties:

  • Three, five, or seven years in prison, depending on the amount and nature of the substance involved

  • Felony probation for five years if the judge grants it

  • Up to $50,000 in court fines

Aggravating circumstances in your case can result in enhanced penalties. If the judge increases your penalty, you must serve the original sentence, along with the enhanced penalty. Examples of aggravating factors that can result in graver penalties include the following:

  • Producing drugs in the same home or compound where a minor aged 16 or younger lives

  • If your actions are also associated with the death or significant injuries of another person

  • If large quantities of dangerous drugs like methamphetamine are involved

Quantity and Type of Drug

Remember that the quantity and type of drugs also play a significant role in guiding prosecutors on how to charge drug crimes.

For example, illegal possession of a controlled substance is mainly prosecuted as a misdemeanor. However, it can be a felony if you are found in possession of a more dangerous drug like heroin or cocaine, and the quantity is more than you need for personal use. Prosecutors consider specific details of a case to determine whether to file felony or misdemeanor charges in your case.

Additionally, if there are aggravating factors in your case, like a serious prior criminal record, this can result in more severe felony charges.

Aggravating Factors

These are factors that make a crime more serious than it already is. Prosecutors consider these factors when charging a crime to ensure that a defendant receives a reasonable penalty in the event of a conviction. Examples of aggravating factors that can make your drug charge more severe include the following:

  • Having a serious criminal record involving drugs, or serious crimes like sex or gun-related crimes

  • Involving a minor or engaging in drug-related activities in the presence of a minor

  • The use of a firearm, or any other dangerous weapon, when committing a drug crime

  • Committing a drug crime within a particular distance of a protected area, like a school, college, children’s playground, drug rehabilitation centre, or homeless shelter

Fighting a Felony Drug Charge

While a drug charge can result in severe penalties, you can change your case’s outcome with proper defense. You need to partner with an experienced criminal defense lawyer to influence the outcome of your case. Skilled lawyers can use various defense strategies or use plea deals for the best possible outcomes in severe cases like these. Here are some of the defense strategies your lawyer can use in your favor:

Arguing That You Are a Victim of Unlawful Search and Seizure

Most drug-related arrests require the police to first search the person or property of suspected defendants for evidence before making an arrest. Searches provide the prosecution with irrefutable evidence to ensure that actual perpetrators are held accountable for their crimes. However, this may not go well if the police do not follow the proper procedures when conducting searches and seizures.

The 4th amendment of the U.S. Constitution protects the public from illegal searches by the police. It requires the police to obtain a search warrant that gives them the right to search a specific person or property for evidence. If the police did not have a search warrant to search your person or property, it is a significant violation if they searched anyway. You may fight for a favorable outcome if the arresting officer exceeded the limitations of the search warrant.

In this case, the judge will dismiss any evidence gathered through an illegal search and seizure. This may weaken the prosecutor’s case.

You Were Not In Possession of a Controlled Substance

Possession of a controlled substance for sale is a felony. The prosecutor must prove that you were in actual, constructive, or joint possession of the controlled substance and that you intended to sell, furnish, or distribute it. Possession is not always an easy element to prove because one can be in physical possession of the drug without necessarily violating the law. This is possible if you do not know about the drug in your possession.

For example, if you live in a shared apartment, you are not necessarily guilty of drug possession if the police find drugs in the apartment. The drugs could belong to one of the people you live with. Also, if you borrow someone’s car, or someone hides drugs in your vehicle, you are not guilty of possession if you did not know of the drug’s presence in the car.

You Did Not Intend To Sell The Drugs

Remember that possession of a controlled substance is a felony if there is proof that you intended to sell or distribute the drugs. Although probing intent can be difficult for the prosecutor, circumstantial evidence like the quantity of the drugs and the presence of drug packaging materials can convince the jury of your intent to sell.

However, you can create a reasonable doubt by arguing that the drugs were for your personal use. If this works, the court will reduce your charge to a misdemeanor, which has more favorable penalties than a felony.

You Are a Victim of Police Entrapment

Entrapment happens when the police induce you to commit a crime you otherwise would not commit. In some cases, the police use tactics to induce a person they suspect of criminal involvement to commit a crime, so that they can arrest them in the act of committing the crime. This makes it easy for them to obtain credible evidence.

However, you can cite entrapment if you only committed the crime because of the police’s inducement. If this works, the court will dismiss all your charges.

You Are Falsely Accused

False accusations are widespread, even in serious matters like drug crimes. Someone may falsely accuse you of transporting or selling drugs to get you into trouble. False accusations are mainly fueled by jealousy or a desire for revenge. Someone who wants to get even with you for something you did or failed to do can plant drugs in your vehicle or house and call the police on you. A skilled defense lawyer will use any strategy possible, including using forensic evidence to prove that the drugs were not in your possession in the first place.

Find a Competent Criminal Lawyer Near Me

A felony drug crime is a serious violation in San Jose; it can result in a lengthy prison sentence and a hefty court fine. Other consequences apply, including a permanent criminal record that can have a lasting impact on your life. Some drug convictions also affect your gun rights and immigration status. However, you can fight for a favorable outcome with the help of a skilled defense lawyer.

At California Criminal Lawyer Group, we understand the life-changing impact of a felony drug conviction. We can help you understand your felony charges, the potential penalties, and the most effective defense strategies to avoid a conviction. We can also defend your rights and represent your best interests in a San Jose court. Call us at 408-622-0204 after your arrest to start all legal processes with us.