Under California law, it is illegal to possess certain prescription drugs without a legal prescription. Some of the controlled prescription drugs include oxycodone, hydrocodone, and codeine. In addition to possessing controlled substances, it is also illegal to manufacture, transport, or sell controlled substances. These are some of the common drug crimes under the Health and Safety Code that we at the California Criminal Lawyer Group defend.
Possession of Controlled Substance
Under HS 11350, you are guilty of possession of controlled substances if you exercised authority or control over the substance or you had the right to do so. You are also guilty if you were aware of the presence of the drug, and you were aware of the drug's nature as a controlled product. You are also liable if there was a sufficient quantity of the substance or drug in your possession.
It is illegal to possess a narcotic or any other controlled drug; your possession of drugs may be actual, constructive, or joint.
Actual Possession- If you are in direct contact or if you have immediate authority and control over a drug, you are in actual possession of it. This means that the drug is in your person and maybe in your bag, your pocket, your purse, or in your body cavity. If the law enforcement officers find you in actual possession of drugs, it is tough to argue that you do not possess the drugs. You may still be guilty of actual possession if the drugs are not on you, but after investigating, the police found out that the drugs were on you a short time beforehand.
Constructive Possession- This implies that the drugs were not on you, but they were in a place or location that you have control over. Your control over the location of the drugs may be direct or through other parties. For example, the police may search your house in your absence and find some drugs therein. Even if you were away at the time of searching your house, you are liable under California's HS 11350 as the drugs were in a location over which you have control. However, if you share a house with a roommate and the police find drugs in your roommate's suitcase, you are not liable as the location of the drugs is not under your control but the control of your roommate.
Joint Possession- If you share either actual or constructive possession of drugs with another person, then you are in joint possession of the drugs. For example, if the police find you and your friend sharing a narcotic, injecting yourselves, for instance, you are in actual joint possession of the drug. If the police find drugs in the living room of a house you share with an intimate partner or roommate; you are in joint constructive possession.
To be guilty of possession of a drug, you must have enough of the drug to use it as a controlled product. Small residues or traces of a drug may not qualify as a possession. However, this does not mean that the drug must be adequate to produce a narcotic effect; as long as the drug present can be ingested, then it is adequate.
Legal Defenses to Possession
If you are facing drug possession charges, we can adopt certain defense strategies to have your charges reduced or dismissed. The defenses may not always succeed, but it is important to exhaust all options of reducing your charges. We can defend you against drug charges in various ways:
- You Were Not Aware
You can only be guilty of possessing an illegal drug if you were aware that you possessed it, and you were aware of the controlled nature of the drug. In some situations, you can successfully assert that you did not know you had the drug. For example, you may lend your jacket to your friend Kevin. And Kevin places drugs in your jacket's pocket and forgets to remove it. When Kevin returns your jacket, the drug is still in the pocket, but you are not aware. If you wear the jacket and happen to be arrested for drug possession after a police search, you may argue that you did not know that the drugs were present and the drugs did not belong to you.
You may also assert that you were not aware that the substance or the drug in your possession was illegal. This defense has worked in instances where a person has a drug, but on encountering the police, it turns out that they are clueless about the illegal nature of the drug. You can only be guilty if, in addition to possessing a controlled product, you are aware that the product is controlled.
- Temporary Possession of the Drugs
You might defend yourself against drug crime charges if you were in temporary possession of the drugs at the time the police discovered them. For instance, if the police establish you were on your way to dispose of the drugs to prevent their illegal usage, you may walk free. However, the police must prove that you did not dispose of the drugs to prevent their seizure by a law enforcement officer. For example, if you realize that the police are coming to search your house and you flush drugs down the toilet, you are still guilty as it is clear you disposed of the drugs to avoid being arrested.
- Illegal Search or Seizure
If you feel that the police used excessive force on you or carried out an illegal search on you or your property, you may defend yourself on that ground. This defense may apply if a law enforcement officer illegally arrests and detains you. If the officer searches you or your property without presenting a legal search warranty, you may defend yourself in court. You may also use this defense if a police officer uses excessive force when seizing the illegal narcotics.
Consequences for Illegal Drug Possession
Under California Health & Safety Code 11350 HS, possession of controlled substances is a misdemeanor offense. The offense may attract a fine of up to $ 1,000, and you may face up to one-year jail term.
However, in some instances, possession of controlled substances is a felony offense. You may face felony charges if you have a history of other serious crimes on your criminal records. Serious crimes include sex crime against a child below 14 years, gross vehicular manslaughter while intoxicated, murder, and sexually violent offenses. Felony possession of a controlled substance may attract 16-month, 2-year, or 3-year imprisonment. Before Proposition 47 came into effect in 2014, all Health and Safety Code 11350 HS violations attracted felony charges. After Proposition 47 took effect, a drug possession charge is either a misdemeanor or a felony depending on the nature of the offense.
If you are facing charges under the Health and Safety Code 11350 HS for drug possession, you may do a drug diversion as provided under Penal Code 1000 PC –Deferred Entry of Judgment, Proposition 36, or California Drug Court. If you have committed a non-violent drug possession offense, drug diversion programs allow you to spend time out of prison. The programs enable you to serve your sentence in drug treatment programs instead of jail. Drug diversion is not available to every offender but has some limitations. Your criminal defense attorney can help you know if you qualify for this form of alternative sentencing.
Possessing or Purchasing a Controlled Product for Sale - California Health & Safety Code 11351 HS
Under California Health & Safety Code 11351 HS, it is illegal to sell or distribute narcotics and other controlled substances. Possessing or buying narcotics with the intent of selling them is unlawful. The prosecutor must prove that you were in possession or that you bought the drug intending to sell it, you were aware of the drug's controlled nature, and you had enough drug to sell or use.
The critical part of the prosecution's case to prove your intent to sell the drugs. You may not have the intention to sell the drugs personally; however, you may still face charges if you intend to sell the drugs through another person or company. If the prosecutor can prove that you were in possession of drugs but fails to prove that you intended to sell them, you will face charges under the Health and Safety Code 11350 HS instead of HS 11351.
This distinction is important as possessing drugs for personal use may have lesser penalties, and the possibility of drug diversion but possession of drugs for sale may have advanced penalties. Drug diversion does not apply to the possession of drugs for sale.
Distinguishing Between Drug Possession for Personal Use and Possession for Sale
Intent to sell can be difficult to prove. The prosecutor makes use of surrounding circumstances, also known as circumstantial evidence to prove the person's intent to sell drugs in his/her possession. Some factors that distinguish drug possession for personal use and drug possession for sale include:
- Quantity of the Drug
The prosecutor may assume that drugs are for sale if you are in possession of many more drugs than the average person would consume. Critics of this evidence state that habitual drug users often keep large stocks of drugs to ensure that they have enough supply. Critics argue that possession of a large number of drugs is not proof of intent to sell.
- Drug Packaging
Drug packaging can be a clear proof of the intention to sell. If drugs are packaged in a manner commonly associated with sales, the prosecutor would have an easy time proving his case. If the drugs are packaged in the form of bundles, balloons, bindles, or baggies, it may be an indication they are for sale rather than personal use.
- Drug Paraphernalia
Drug paraphernalia may include items like syringes, pipes, needles, and other equipment often used to ingest or consume the drug. The presence of drug measuring instruments, weighing scales, or tools used to dilute or separate drugs may prove intent to sell the drugs.
- Intoxication/ Under the Influence
If you are intoxicated at the time of arrest, it may be an indication that the drugs you possess are for personal consumption rather than for sale. However, this evidence is not fully reliable as most sellers of narcotics and other controlled substances are also consumers of the products.
Sales or Transporting a Controlled Substance - California Health & Safety Code 11352
The main distinction between California Health & Safety Code 11351 HS and California Health & Safety Code 11352 HS is that 13252 HS entails actual drug sales and transportation while 13251 HS revolves around the intention to sell drugs under your possession. The crime of actual sales and transporting a controlled substance is a felony offense, and the associated penalties include 3, 4, or 5 years in county jail. You may face longer imprisonment for transporting the drugs for more than two county lines.
Possessing, Selling, and Transporting Methamphetamines
Three sections of the California Health & Safety Code, namely 11377 HS, 1378 HS, and 11379 HS, outlines the charges for possessing, selling, and transporting methamphetamines. The three sections help regulate slightly less serious drugs with methamphetamines, commonly known as meth, being the most common drugs under the "less serious drugs" category. Other drugs that fall under this category include certain anabolic steroids and ketamine, among others. Code 11377 HS covers possession of methamphetamines for personal use, Code 11378 HS covers possession of methamphetamine with intent to sell, and Code 1379 HS covers the actual sale and transport of methamphetamines.
An offense under code 11377 HS is a wobbler and may either be a misdemeanor or a felony under California law. However, offenses under sections 11378 HS and 11379 HS are felonies.
Possessing Marijuana for Sale -11359 HS
Under California Health and Safety Code 11359 HS, it is a felony offense to possess marijuana for sale. Possession of marijuana with an intent to sell it may attract sixteen-month, two-year, or three-year in county jail. For this offense, you may pay fines of up to $10,000.
Selling Imitation Controlled Substance – Health & Safety Code 109575 HS and 11355 HS
An imitation controlled substance is a fake substance/drug that have the same outward appearance as a genuine controlled substance. Under California Health and Safety Code 109575, manufacturing, selling, or possessing for sale, an imitation controlled substance is illegal. It is a misdemeanor offense to violate 109575 HS, and the offender may face up to six months imprisonment in county jail and incur a fine of up to $1,000.
Under the California Health & Safety Code 11355 HS, it is an offense to offer to sell or supply a controlled product, and instead, provide or plan to provide an imitation controlled substance. Supply imitated controlled substances is a serious crime. Fake drugs may pose a threat to consumers may also lead to an overdose; consumers may consume additional genuine drugs after consuming and realizing the supplied drugs are fake.
Violating 109575 HS is a misdemeanor offense under California law while violating California Health & Safety Code 11355 HS, is a wobbler and may either face misdemeanor or felony charges. A felony charge attracts a longer sentence of between 16 months and three years in county jail.
Selling/Possessing for Sale Synthetic Cannabis and Stimulants- 11357.5 HS & 11375.5 HS
Selling or possessing for sale synthetic or designer drugs is illegal under California law. Selling or possessing for sale synthetic marijuana (synthetic cannabis) is unlawful under code 11357.5 HS. Under code 11375.5 HS, it is illegal to sell or possess for sale a synthetic stimulant.
In most cases, synthetic drugs come under the label "not for human consumption" and are often wrapped in small quantities using aluminum foils or plastic wrappings.
Synthetic cannabis may contain some leafy materials or herbs, but most of its active ingredients are manufactured in a laboratory and may have detrimental effects on the consumers.
Synthetic stimulants are commonly known as bath salts, and they offer similar effects as popular controlled substances like methamphetamine, cocaine, and other drugs. Selling synthetic drugs or possessing them for sale is a serious felony under California law and may attract up to twenty years in federal prison a hefty fine of up to $1 million.
Opening and Maintaining a Drug Store- 11363 HS
Under California Health & Safety Code 11363 HS, it is unlawful to open and maintain a store meant for storing and repeatedly distributing controlled substances and drugs. In most cases, crimes under 11363 HS are charged alongside the crime of possessing a controlled substance for sale. Opening and maintaining a store for controlled substances is a felony offense with felony penalties.
Illegally Manufacturing Narcotics - California Health and Safety Code 11379.6 HS
Under the California Health & Safety Code 11379.6 HS; it is illegal to manufacture narcotics. According to the law, it is illegal to manufacture, compound, produce, convert, prepare, process, or derive controlled substances. It is illegal to offer to participate in the mentioned actions of manufacturing of controlled substances outline the HS 11054 to 11058 HS. Some controlled products commonly manufactured by people include marijuana, heroin, cocaine, ecstasy, or PCP, among others.
If you are facing charges for the illegal manufacture of narcotics, you may defend yourself by arguing that you were merely involved in the preparation but not manufacture of the drug. Even if you had the intent of manufacturing the drug, as long as you had not performed the actual manufacturing, you might not face narcotics manufacturing charges.
You may also argue that you were in the wrong place for a long time. People often visit drug-manufacturing labs to buy or use drugs. You may happen to visit the drug lab to buy drugs only to encounter police at the lab. The police may arrest you for manufacturing drugs, yet you were a buyer of drugs.
You may also defend yourself by asserting that you are a victim of mistaken identity. Some reasons may lead to the arrest and conviction of innocent people, including false accusations based on anger or revenge, mistaken identification by eyewitnesses, or provision of wrong information to the court as the police seek your arrest warrant.
Under California law, the manufacturing of narcotics is a felony offense, and you may face imprisonment of 3, 5, or 7 years in California State Prison if convicted. The judge may impose probation of one year instead of jail time.
A conviction for offering to manufacture drugs is a felony offense, and the possible consequences include probation of up to one year and imprisonment of three to five years.
Aggravating Factors to Narcotics Manufacturing Charges
Some legal factors may aggravate your charges for manufacturing narcotics and make you face harsher penalties for the crime. Aggravating factors may lead to lengthy imprisonment and hefty fines. Some aggravating factors include:
- Producing/manufacturing huge quantities of narcotics or other controlled products will attract some enhanced consequences
- Causing injury and death- for instance, if you manufacture meth, PCP, or attempt to manufacture them and in the process, a person dies or maintains a great bodily injury, you may face aggravated charges
- You may face aggravated charges if you manufacture narcotics in the presence of children or if you manufacture the drugs in occupied premises. For example, if you manufacture the drugs in your house where you live with a child below sixteen years, you may face aggravated charges.
- If you have prior convictions for drug crimes, you may face aggravated charges for your narcotics manufacturing crime.
Contact a San Jose Criminal Attorney Near Me
You can commit drug crimes in many ways, either knowingly or unknowingly. Drug crimes attract severe consequences, including fines and imprisonment. You may face enhanced punishment if aggravating factors are present. At California Criminal Lawyer Group, we can represent you and defend you if you are facing drug crime charges. Contact us at 408-622-0204 and speak to one of our attorneys. Legal representation may help reduce your charges and associated consequences or help you get into a drug diversion program.