POSSESSION OF A CONTROLLED SUBSTANCE
If you have been charged with possession of a controlled substance, definitely read the discussion below. We have been defending California drug cases collectively for over 20 years and have been successful in literally thousands of cases. We know the drug laws, potential defenses, penalties, alternative sentencing solutions and tactical strategies for handling these cases.
California makes a rather large distinction between possessing a drug for personal use vs. possessing a drug for sale or distribution. Different counties and different courts within those counties take very differing stances on these cases.
The discussion below gives a general framework for how these cases are charged, what the prosecutor must prove, what the potential penalties are and what alternatives exist. To get more specific, we need to speak on the phone. I am available right now to speak to you about your specific case and the court it is charged in. Call me right now at (818) 839-6867 to discuss your case in detail. I can promise that I will go in swinging and will not stop until your case is handled right.
IF YOUR PROPERTY OR PERSON WAS SEARCHED ILLEGALLY READ THIS
The 4th Amendment to the US Constitution says that the cops cannot search your property or person without a warrant or without the presence of some very specific exceptions to having a warrant. I have written a more detailed discussion about ILLEGAL SEARCHES AND SEIZURES (HERE). Basically, if your stuff was illegally searched, we will explore the option of filing a MOTION TO SUPRESS the evidence under California Penal Code 1538.5 (link). Typically, if such a motion is granted, the case is over, you go home a happy camper. If you want to discuss these details about your case, call me.
WHAT CODE SECTIONS ARE USUALLY CHARGED?
Typically, simple possession is charged under California Health and Safety Code §11350 or 11377. There are other sections that refer to simple possession of more specific substances. These sections are rarely charged. If you have been charged with one of these, call me at (818) 839-6867, and we can discuss the section and its penalties in more detail.
CA.H&S §11350(a)- SIMPLE POSSESION OF A CONTROLLED SUBSTANCE
WHAT DRUGS DOES 11350(a) COVER?
11350(a) typically charges possession of cocaine, cocaine base, rock cocaine or “crack”, opium, all other opiate derivatives including heroin, some hallucinogens including peyote or synthetic mescaline, LSD, and some prescriptions drugs including codeine, hydrocodone and oxycodone.
WHAT ARE THE PENALTIES?
11350(a) is a felony charge. It is not a “wobbler” which means there is no misdemeanor version of it. The exposure is 16 months, 2 years or 3 years in the state prison. If probation is granted, the exposure is anywhere from 0 days to 365 days in the county jail. 11350(a) is not a “strike” under California’s 3 strikes law. A conviction typically requires “narcotics registration” which requires a person to register as a “narcotics offender” with a local law enforcement agency for a finite period of time. If you are not a citizen of the US, there are possible immigration consequences to a conviction of 11350(a). For a more detailed analysis of immigration consequences in criminal cases, see HERE. I can elaborate in more detail when we speak on the phone or in person. Call me at (818) 839-6867.
CA.H&S §11377(a)- SIMPLE POSSESION OF A CONTROLLED SUBSTANCE “NON-NARCOTIC”
11377(a) is similar in every way to 11350(a) except in the substances that it charges.
WHAT DRUGS DOES 11377(a) COVER?
11377(a) typically charges amphetamines, including methamphetamine, MDMA or “Ecstasy,” PCP, Ketamine or “Special K”, some anabolic steroids and GHB among others.
WHAT ARE THE PENALTIES?
11377(a) is very similar to 11350(a) with one main exception; it is a “wobbler” which means it can be charged either as a felony or as a misdemeanor. If charged as a felony, it carries the exact same penalties as stated above for 11350(a). If your lawyer knows what they are doing, they can explore a 17(b) motion, or a motion to reduce the felony to a misdemeanor. If the case is charged as a misdemeanor, the exposure is 0 days to 1 year in the county jail. 11377(a) is not a “strike” under the three strikes law. Narcotics registration is required and there are some possible immigration consequences for non-US citizens.
ALTERNATIVE SENTENCING FOR SIMPLE POSSESSION- GETTING YOU OUT OF THIS THING
It is important that your lawyer know all of the possible alternatives available to you, if any, and how to accomplish getting you the best outcome. This often involves presenting you or your loved one in a more favorable light than you appear at arraignment. This can involve getting members of the family or community to write letters on your behalf, or showing a particularly good record at work or school. Alternative sentencing is granted as a matter of course in some instances, but sometimes it is relationship driven, meaning, knowing people helps out a lot.
There have been many attempts at alternative sentencing schemes for simple possession in California. These include:
- PC 1000 or “DEJ” discussed in detail HERE (LINK),
- Proposition 36 or “prop 36” discussed HERE (LINK) and
- SODC or “drug court” discussed HERE.
Often, there are other options available depending on the court. Some of these include some type of
- “informal diversion” where a defendant may “waive time,” complete some terms like a drug program or community labor, come back to court and plead to some diminished charge, sometimes a misdemeanor or even getting the charges dismissed altogether.
FOR SIMPLE POSSESSION, WHAT DOES THE PROSECUTOR NEED TO PROVE?
- You “exercised control” over a controlled substance,
- You knew of its presence,
- You knew it was a controlled substance,
- The substance was a useable quantity sufficient to be used.
WHAT DEFENSES ARE AVAILABLE?
1. You were searched illegally
As stated above, there is the possibility of a motion to suppress any illegally obtained evidence. For a more detailed discussion, click HERE. In a drug case, if the evidence is suppressed, it usually means a dismissal of the case. Game over.
2. You had valid prescription
If you had a valid, written prescription for the medication from a doctor, dentist, podiatrist, naturopathic doctor or veterinarian LICENSED IN CALIFORNIA, you have a legal defense. This goes for all prescription drugs including marijuana. We can take that prescription into court and usually get an outright dismissal of the case. It can get more complicated if there is a pending probation violation.
3. You didn’t really possess the drug
There are a few types of possession recognized in California. Actual possession, joint possession and what is known as constructive possession.
Actual possession means you were physically holding the drug, it was in your pocket, in your hand or in a bag you were carrying. Actual possession alone is not enough to find someone guilty, but it is typically pretty compelling evidence.
Joint possession is the concept that more than one person can possess something. Lets say A and B put some money together to buy some cocaine and are driving home get high. A has the cocaine in his pants. Cop pulls A and B over. If all of the facts are proved, the law says that A and B jointly possessed the cocaine.
Constructive possession refers to the concept that you didn’t actually possess the drug but the drug was found in a place that you have control over. An example of this would be A is out at the mall, his house is raided, meth is found. A wasn’t in the house at the time, but he had control over the house and can be said to have constructively possessed the meth.
Whatever the prosecutions theory of possession, the defense here is that NONE of these three types of possession apply to your situation so element 1 cannot be met.
4. You only possessed the drug for a short time
Here the defense basically entails someone who possesses drugs for a short period of time in order to abandon dispose or destroy the it and not with the intention of hiding it from the cops. This is what is called an affirmative defense. The DEFENSE must be able to show that it is more probable than not that the above is true.
5. You did not know it was there
To get possession, you must know that the drug was there. Let’s say someone hid it in your car, or your house. Or your buddy has stuff in his pocked but didn’t tell you. This is probably the most common defense to simple possession.
6. You didn’t know it was a controlled substance
It is not enough for the prosecution to show that you knew a backpack was in your trunk or even that the backpack contained powder. You must know or should have known that it was a controlled substance. So if Aunt Bee gets pulled over and her nephew told her to hold some herbs, which she thought,was for cooking. She has a defense.
7. There was not a ‘usuable quantity’
The law only punishes possession of enough to “use.” Typically this means enough to be used as a controlled substance. Traces or debris don’t count. So a cop cannot take your wallet, scrape a $100.00 bill, get a microscope, find minute traces of cocaine and arrest you for 11350.