Do you know that, if you are caught in possession of a controlled substance, you may face brutal repercussions? In some instances, you may face penalties of serving jail time, which can significantly have an impact on your life for an extended period. In this case, you will need to hire the services of a proficient and experiencedSan Jose criminal defense attorney to help you beat the case. The legal team of California Criminal Lawyer Group will strive at all costs to find a credible defense strategy that will navigate through the criminal process.
What Constitutes Possession of a Controlled Substance under California Law?
According to California's law, you are legally regarded as having possession of a controlled substance if the drug or substance is under your control or easy to access. This means that the controlled substance must not be in person with you. A case where the controlled substance is under your name or control is abused by a minor or any other person in the state of California may lead you to face charges of the offense.
California Health and Safety Code 11370.1 HS states that it is unlawful for a person to possess any quantity of controlled substances, such as methamphetamine, cocaine, PCP, heroin, illegally obtained prescription drugs, or any other subsidiary drug similar to the content in question. The law specifies that as long as you are in control of drugs and can easily access controlled substances that have been abused, you are liable for a criminal offense.
It may be treated as a possession as well as drug distribution felony. For that reason, you must understand the law and the types of charges you are likely to face. Hire a dedicated and experienced California Criminal Lawyer Group without delay to make sure you profusely comprehend the claims against you.
Possession of a controlled substance may be termed as drug sale. This entails that the owner of the content in question may hold it to distribute or sell it to the public in an illegal means. By illicit means, the law clarifies it as any transaction of selling a controlled substance without a valid or legal prescription from a doctor, pharmacist, or a medical practitioner. The prescription may fall hand in hand with the Health and Safety Code.
Types of Possession of a Controlled Substance
Over the years, cases of possession of an illegal substance have sparked a long-standing debate among legal practitioners. However, in the state of California, the law classifies drug possession into two broad categories;
- Drug sale possession; and
- Simple possession.
A person caught with a drug listed in the California Health and Safety Code as a simple possession may face misdemeanor charges. On the other hand, if the state or judge is persuaded that the suspect has the intention of selling and engaged in drug dealing, he or she is likely to face charges of felony.
Therefore, don't wait for the authorities to catch you off the grid. Seek the services of a professionalSan Jose criminal defense attorney for advice and free consultation.
The types of possession are cataloged as:
An Actual Possession:
This is an allegation that you were physically involved in the actual use or control of the substance. This explains one being found to having a controlled substance in person. It may be in your pocket, backpack, or your property.
This allegation implies that the controlled substance was not necessarily in the position of the owner, but that it was found in a place that could easily be accessed by the owner. A good example is storing drugs in your car or a cabinet.
A Joint Possession:
This is a criminal allegation that involves two or more parties being held liable of having ownership of a controlled substance. This change mainly occurs when illegal drugs are found in a place that you are more likely to share with your partner or individual and have constructive possession.
What Are the Exceptions of Controlled Substances?
Drug crimes, drug distribution, and any offense involving the possession of an illicit substance based on the Health and Safety Code is a severe crime. If you are caught with even a slight piece of the drug may mean serving time in the state prison or facing misdemeanor offenses. However, a few exceptional cases of drug possession may be allowed in California.
These include Marijuana possession, alcoholic beverages, and drug paraphernalia possession. Note that, a limited amount is used to regulate the consumption of such drugs. Misusing these exempted drugs may attract hefty misdemeanor charges, or in an aggravated case, may result in a felony charge.
Use of Marijuana
Decades ago, marijuana was considered to be illegal on the list of controlled substances. However, in the state of California, a controversial 'Proposition' bill was passed into law by the voters in 2014. This bill changed the sentencing structure of drug possession, meanwhile on the same legalizing the use of marijuana, though on a restricted quantity.
Proposition 47 made most of the drug possession crimes punishable as a misdemeanor only along with allowing those serving time in a state jail for drug possession charges to appeal the court for resentencing. Proposition 64, well known as the Adult Use of Marijuana Act, legally allowed the citizen to use the drug, however, on a diminished amount.
The bill allows one to possess up to one ounce of marijuana. Besides, one could possess up to six marijuana plants per residence for adults over the age of 21. Any extra amount could attract a misdemeanor offense.
Use of Alcoholic Beverages
Beverages containing alcohol is legal within California, as well as the country in general. However, it is restricted based on the person's age, as well as the activity involved while taking the drink. An underage is not allowed to consume any alcoholic beverage. One is likely to face juvenile charges or misdemeanor charges if he or she is caught in the act.
Alcoholic beverages may as well attract offenses such as DUI charges. However, the situation may be aggravated, leading to an aggravated DUI / DWI, which may face serious charges such as facing a prison term, regardless of whether it was the first or subsequent offense.
Making use of Paraphernalia Substances
Apart from drug possession charges, possession of drug paraphernalia offense is one among the most frequently incriminated felonies in any jurisdiction. Nearly everything can be called paraphernalia. However, objects such as roach clips, glass tubes, bongs, and syringes are frequently linked with felonies. Most state regulations define which gear is deemed to be drug paraphernalia. Such laws mention specific objects that are often prohibited like vials, opium tubes, hypodermic needles, water pipes, and miniature spoons.
Paraphernalia may, in addition, consist of products useful for the manufacture, developing, measuring, and labeling of prohibited substances, like plastic bags, just to name a few. Possession of drug paraphernalia is more often than not charged as a misdemeanor crime. However, some states may treat such actions as felony charges, based on some situations. Punishments for simple possession of paraphernalia may attract lighter charges than penalties for the manufacture/distribution of such substances.
Elements of the Offense
While facing criminal charges or misdemeanor for possession of controlled substances, you may feel frightened and hopeless, as if the world is coming to an end, or your life is completely destroyed. You might be hoping for a miracle or a chance to get a gap to navigate the scary criminal justice process.
Fortunately, you may need to affirm the expertise of an outstanding, qualified California Criminal Lawyer Group to help you build up a compelling defense and find a way through the criminal justice system.
If the prohibited substance is accessible on prescription and you are found with the medicine, but devoid of a valid recommendation, you may be prosecuted. Your professional criminal defense attorney must ensure that certain aspects of the case have to be proved by the prosecutors in order to validate the sentences.
Proof of Possession
In order to validate the conviction, the prosecutor must provide the court with evidence that the accused had possessed a controlled substance with him at the time of the arrest so that the proof is valid enough to incriminate the defendant.
The prosecutor must elaborate on the exact person that was caught in contact with the drugs. If the purported substances were found to have been present or near a person near you, then it is not valid enough to be used against you.
Quantity of the Drug
Based on the amount or portion of the drug, it will determine the type of case you will face. If the amount of the drug that was confiscated during the arrest was small, it might be considered for personal use alongside the different charges. On the other hand, if the quantity was significant, then the court shall assume that you had any intention of selling or involve oneself in drug dealing.
The Nature and State of the Drug
The form in which the drug was found is also important. The drug's nature and state must be in its final form to validate the conviction. If the drug confiscated happens to be a residue of the drug traces, then it may not necessarily be enough to show that the crime was committed.
The intention of the Defendant
A prosecutor must clearly explain the position of the defendant in the case. The prosecution would, therefore, require a clear understanding of the defendant's purpose at the moment of the identification of the substance. This will show if the intention was to distribute or for personal use. A case whereby the drug was divided into smaller amounts and packed in containers, then it can be presumed that there were for sale.
One's Knowledge of the Drug
For the conviction to be valid, there must be evidence that the accused was aware of the presence of the drugs. There must be proof that the defendant was aware of the substances and was being sold and/or using illegally.
What Are the Penalties for a Controlled Substance Possession in California
Possession of a controlled substance can lead to severe charges. Nonetheless, if you were armed while in possession of the drugs, the charges levied against you may be more rigorous and intense, especially in California. Conversely, if the substances that are highlighted in the Health and Safety code were caught in your position, it is going to attract a misdemeanor charge.
This means facing a punishable sentence of;
- Serving time in California state prison for two, three, or four years; and/or
- Paying a fine of up to $10,000.
As illustrated before, the sentence structure was influenced by the Proportion 47 bill. Please note that the penalties we shall discuss are all reflected in the Post-Proportion bill era.
Sanctions after Prop 47
Controversial Proposition 47, commonly known as Prop 47, was constitutionally adopted in California in 2014. The move was pioneered by voters in a drive to revise the penalties inflicted on substance abuse. The bill made most drug possession crimes punishable as a misdemeanor only along with allowing those serving time in a state penitentiary for drug possession charges to appeal to the court for resentment.
After Proposition 47, various crimes are punishable as a misdemeanor offense, along with facing the sentence in jail. If you are found guilty of possessing a controlled substance, this could mean facing California's mandatory minimum sentencing laws that apply to all scheduled drugs. This entails serving up to one year in county jail, not state prison.
The crimes are categorized as either:
Schedule I; This category involves types of drugs that are most likely to cause potentially serious physical or psychological addiction. Substances in this category have no legitimate medical use, thus have a high potential to be abused. It comprises of mescaline, derivatives of opium, peyote, opiates, MDMA, LSA, or synthetic marijuana.
Schedule II; These drugs are highly likely to be abused, although their effects are less severe than those of Schedule I. As a result, they have legitimate medical use in the country with a prescription. They can cause psychological or physical addiction. They include Percocet, OxyContin, methadone, methamphetamine, cocaine, Ritalin, narcotics, opiates, to mention a few.
For the first offense of possession of an illegal substance, the penalties involved for these two categories may include;
- Facing up to one year in prison;
- Payment of a fine of up to $5,000;
- License of the driver will be suspended for six months. You may face a one-year and two-year suspension of a driver's license for second and third offenses.
Aside from the legal repercussions, you may experience a lasting effect on your criminal record. These include difficulty in losing custody rights of your child, getting a job, challenging to maintain your job position, to mention a few.
Schedule III; This section is classified as drugs that have a moderate to low potential of inflicting physical or psychological damage to the person. They can be classified as hallucinogens. They portray legal, medical use and thus may be recommended in prescription by a medical practitioner. They include testosterone, anabolic steroids, Tylenol with codeine, Ketamine, Vicodin, to mention a few.
Schedule IV; These drugs are categorized as encompassing a low probability of inflicting physical or psychological dependence on the person. Besides, they are less prone to substance abuse compared to schedule III. One may legally get a prescription for the medication since it may well be significant for specific medicinal purposes.
If you're accused with illegally holding possession, vending or planning to put up for sale a Schedule III substance;
- You may risk being sentenced to five years imprisonment in the state;
- Payment of a fine of up to $15,000.
On the other hand, if you are charged with selling a Schedule IV product or intend to sell it;
- You are at risk of serving up to three years in prison; and
- Pay up to $10,000 in fine.
The judge may also exercise explicit aspects of the case as a fraction of your sentence. This may be factors such as the quantity amount that was confiscated, prior conviction, an existing criminal record, or any other aspect that may aggravate the charges. Therefore, if you are accused of possession of an illicit substance, the foremost stride should be to take into service a qualified, skilled California Criminal Lawyer Group.
The attorney must have worked with the prosecutors in handling such cases and knows how to navigate about the criminal justice system. Therefore, do not panic - demand to speak to an experienced attorney before talking to the police or prosecutor.
Possession of Marijuana and Concentrated Cannabis
According to the controversial Prop 64 Act, Adult Use of Marijuana Act, it is legal for a citizen or resident aged 21 and above, within the state of California, to use or have possession of marijuana. This is, however, on a limited basis.
If the accused is found to have an extra quantity, then it may be termed to be illegal. That is any person caught with more than 28.5 grams of marijuana or other forms of concentrated cannabis; it is punishable by;
- Facing a prison term of up to 6 months,
- Paying a fine of not more than $500, or both charges.
Individuals aged 18 and under that are caught in possession or using the drug must undergo an obligatory drug education course as well as being subjected to community service.
An instance whereby you own up to 8 grams of concentrated cannabis is legal, according to California's laws. However, being in possession of over 8 grams is punishable by;
- Facing incarceration of up to 1 year,
- Subjection to a fine of up to $500, or both charges.
Common Defenses for Possession of Controlled Substance Crimes
Possession of controlled substances is a notorious offense, especially in San Jose, CA. For that reason, the authorities are keen and willing to prosecute such dealers. Their enthusiastic approach to the drug war often leads to innocent people being convicted. Fortunately, if you have an experienced California Criminal Lawyer Group defense attorney on your side, he/ she will be able to defeat the prosecutor's charges.
Your criminal defense attorney will assess the situation and explain to you the claims filed against you. Therefore, contact our experienced California Criminal Lawyer Group defense attorney without delay to help you fight for your rights and to vigorously defend you against wrongful convictions. Your attorney may apply some of these defenses:
Unlawful Search and Seizure
The authorities may have caught the defendant in the act. However, the arrest and prosecution had to follow the legal means of a step-by-step procedure. For example, the defense attorney would like to know how the investigation was conducted, whether it was suspicion and how the seizure was conducted. In any event, your rights have been violated, such as the failure to receive a search warrant on your property or your own, shall be regarded as inadmissible at trial.
Inaccurate Analysis of the Results
The prosecutor or the state must provide proof showing that the alleged substance is a controlled substance. In another scenario, they must prove that the controlled substance is the suspected controlled substance. This means that if the prosecutor accused you of alleged possession of cocaine, but in a real sense, it was not cocaine, the state may, by law, withdraw the prosecution's case due to a mishap of the evidence.
A direct challenge to kind of possession alleged
For the defendant to be convicted of a felony, the prosecutor's case must prove that you had control over the controlled substance, or you were able to access the controlled substance. Your skilled California Criminal Lawyer Group may opt to challenge the kind of possession you are being subjected to.
Contact a Criminal Defense Attorney Near Me
Are you facing charges related to possession of controlled substances? Do you have any questions concerning possession of controlled substances crimes? Feel free to speak to the California Criminal Lawyer Group by calling 408-622-0204. You'll get top-notch advice and free consultation on the most viable path to a successful outcome. Remember always to seek the help of an attorney to guide you in protecting your rights.