The LA Criminal Defense Attorney is one of the highest rated criminal defense attorney firms in the Los Angeles, California area. Our firm is known for an aggressive team of defense attorneys who focus on California criminal law with expertise in drug possession cases. With our experience and skills, we have the ability to handle all varieties of criminal cases concerning drug possession within California law. With the many years of experience, we have assembled various ways of defending a drug possession charge, which include an introduction to reason, affirmative defense, arranging a plea deal, among others. There is also the possibility of arguing that the defendant is not guilty if the prosecutor's evidence is weak due to a lack of speculative evidence.
What is Drug Possession Under the California Law?
Under the California Law, drug possession falls under the California Health and safety law 11350; where it clarifies that a person who is in possession of a regulated substance that is listed or one that is a narcotic drug, may be charged with drug possession charges and will be punished by imprisonment, unless it is written in prescription by any physician, veterinarian or any medical officer licensed to practice in the state of California. Drug possession laws are categorized into simple possession and possession with the intentions to sell or distribute. Under section 11054 HS, the said drugs include narcotics such as heroin, ecstasy, cocaine, crack, and ketamine. For prescription drugs, the more common drugs are Vicodin or codeine.
Proposition 47 and 64
A prosecutor has the right to charge you; the defendant with simple possession if you had one of the substances listed under the 11350 code. For intentions to sell or purchase for purpose of sale, the prosecutor can let the state believe that your intentions were to take part in the drug dealing scene. In 2014 California voters passed the Proposition 47, a new law making the possession of drugs to only be punishable as a misdemeanor, in that for those who would serve time in the state prison would have the ability to appeal to the law court for resentencing. However, for some convicts who had other criminal records such as rape, registered sex offenders or murder, are unable to petition with the courts for resentencing. Additionally, in 2016, the voters passed Proposition 64, a law that states that anyone over 21 and over has the right to buy, hold or consume marijuana of up to 28.5 grams or the equivalence of 8 grams of concentrated marijuana on their private property and license properties selling marijuana.
Possession of Controlled Drugs Apart from Marijuana
Any of this possession might have a different effect on the defenses that are available during trial. For the purpose of sentencing, the state of California decided to classify Controlled Dangerous Substances into various schedules.
Schedule 1 - consists of Ecstasy, Heroin, and LSD
Schedule 2- Cocaine, methadone, methamphetamine, OxyContin
Schedule 3- ketamine and steroids
Schedule 4 –Ambien and Valium
Schedule 5 – Cough Syrup
Penalties for Controlled Drug Possession
For first time offenders with a possession of controlled drugs charge, it will be considered as a misdemeanor and if you go through the trial process the possible penalties that you may face will be, pay a maximum fine of up to one thousand dollars ($1000) and face up to one (1) year of incarceration in the county jail. In California State, under Proposition 47, drug possession charges were changed to a misdemeanor charge from a felony charge. The clause states that for you to fall under a misdemeanor charge, it must be for personal consumption and you aren't involved in any past conviction for other crimes such as sex crimes or any possession of a firearm, as it would then be considered as a felony. For a felony, the penalties are quite harsh; the penalties include up to three (3) years for possession and for intent to sell can increase the time to five (5) years.
Under Proposition 36, if you are charged with a nonviolent drug crime which constitutes in this article as drug possession without intent to sell, there are possible ways you can enroll in a drug diversion program. The program allows you to serve your sentence through a substance abuse program which will lead to your case being dismissed after completion. It's quite unique for those who know they will face jail time. In order to request this program, you must be aware that you are a drug addict and that you need treatment. By doing so, you will avoid county jail and will engage in a drug rehabilitation program. And for that to happen you need to:
Agree or enter a guilty plea,
Waive sentencing for eighteen (18) months,
Prove to the court that you will be enrolled in an approved drug rehabilitation program in the next two (2) weeks.
From then onwards, you must provide proof of completion of the program for the next six (6) months
Pay fees for the following: restitution fee, administrative fee, and cost of the drug program
Finally, the courts will terminate the charges if you have done and completed all the above clauses and without any new charges.
Possession of Marijuana Above One (1) Ounce
No penalties for any individual of up to twenty-one (21) years of age if you have one ounce or growing up to 6 plants in your property. If you are found in any school ground it is considered as a misdemeanor and the possibility is between ten (10) days to six (6) months with a fine of up five hundred dollars ($500).
Penalties for Possession of Drugs for Sale
It is a more serious crime when the intent was to sell the drugs, as the charges jump from a misdemeanor to a felony. Under the Health and Safety law 11351, the state of California covers all illegal drugs plus general prescription drugs.
How Does a Prosecutor Prove That You Had the Intentions to Sell the Drugs?
The Prosecutor could charge you with possession with intent to sell the drugs if they are to prove you had the intention of selling. This simply translates to the following reasons:
You had a large quantity of the drugs; may it be a narcotic or any controlled substance.
The drugs were packaged in separate packaging, may it be baggies or even in bindles.
You had the said drugs in large scale.
If you had a lot of cash and it was in small dollar amounts.
There are a lot of persons coming in and out of your property, most of them staying in for more than several minutes.
Note that if the prosecutor has evidence of the following items in your possession such as weighing scales, measuring instruments or any other type of instruments that can be used for packaging, diluting of the substance or separating, the prosecutor will claim that in fact you had intent to sell and charge you with drug possession with intent for sale.
Penalties for Possession for Selling
If you are charged with drug possession, you will be in violation of the California Health and safety statute 113511, meaning that the sentence you will face may lead to between two (2) to four (4) years in the county jail.
The defendant might also pay up to a fine of twenty thousand dollars ($20,000), although there is a possibility of you getting probation and one year (1) in jail. It is at the same time highly unlikely to be ineligible for penal code 1000 PC (Pretrial Diversion).
Related Charges to Drug Possession
In the clause, there are related offenses with 11351 HS or some with similar conduct that is naturally charged with the connection to 11351 HS. They include the following;
11352 HS also known as sale and transportation of controlled substances – the major difference between 11352 and 113521 is that it comprises actual drugs transactions, this is quite different to possessing narcotics with the intentions of selling them.
11377, 11378 and 11379 HS which refers to sale, possession and the moving of methamphetamine. Although they are quite similar, the law has the power to regulate a little bit “less serious drugs” classified as "meth". 11377 HS is considered a wobbler offense, meaning the defendant can be charged either as a felony or a misdemeanor. For both 11379 and 11378, you can be charged as a felony and the charges fall between sixteen (16) months and up to nine (9) years in prison.
109575 HS and 11355 HS the sales of any imitated controlled substance. The health code violations consist of any fake or as commonly known, bunk drugs. Bunk drugs are any imitation of controlled substances that are deliberately indistinguishable by their outwards appearance from that of the genuine product. The safety code claims it’s illegal to produce, sell or have possession for selling of the imitated substance. It will be punished as a misdemeanor with either a maximum of (6) months in county jail and legal fees amounting to one thousand dollars ($1000).
11357 and 11375.5, the sale and possession for the sale of fake cannabis and stimulants- it makes it clearly illegal to have in your possession for sale or sale of synthetic drugs. It’s considered as a misdemeanor and you will face a maximum of six (6) months in county jail or a fine of up to a thousand dollars ($1000).
11363 HS opening and maintain a drug den: this refers to operating a drug house, with your main intent being repeatedly or continuously selling or distributing illegal or controlled substances. The prosecutor might claim that this is a type of a wobbler offense and the possibility might be between sixteen months (16) to three (3) years inside the state prison.
Alcohol is an illegal drug for anyone who is below 21 years of age in the state of California, as they do not have the consent to purchase, consume or possess the drug. The sale of alcohol is licensed under the county authorities and must be granted still for those with stores, bars, restaurants or any place selling alcoholic beverages. Driving a motor vehicle while intoxicated is a misdemeanor carrying a penalty not exceeding one (1) year in the California county jail. For a first-time offender, it might result in probation, fines or community service. For a repeat offender, it is considered a felony depending on the circumstances surrounding the case. For public intoxication, the law states that it is a misdemeanor, and so is the case with municipal ordinances. Though it is not often prosecuted, you can be released after a sober night in jail. If you have a criminal history and you have been convicted of public intoxication you will serve a jail sentence of six (6) months and with hefty fines of up to $1000.
For any business selling alcohol to minors, you will be accused of contributing to the delinquency of a minor which is under Penal Code 272 of the California law. Legal fees could go up to two thousand five hundred dollars ($2500) and up to one (1) year in jail.
Nicotine and Tobacco Products
Under the California statute, any product that contains nicotine; such as cigars, cigarettes, and tobacco, is illegal for anyone under the age of twenty-one (21) years. These products are licensed and controlled by the authorized legal personnel as per the state of California. The California bill AB846 states that it is illegal to smoke within any entrance or any operable window that is in a public building. Smoking in a moving vehicle with a minor is considered an infraction. Although as an adult you can't be charged with having any of these products, you can be charged with selling to minors, with fines ranging from two hundred and fifty dollars ($250) all the way to one thousand dollars ($1000), and up to ninety (90) days in county jail. For repeat offenders, you could lose your business license.
What a Prosecutor Must Prove for a Drug Possession Conviction
For you to be convicted in a court of law by a prosecutor under the 11351 HSC, they need to prove that the crime was beyond reasonable doubt. Some elements of the offense of drug possession include:
You knowingly possessed the drug
You had the knowledge that it was a drug and is illegal.
The drugs you possessed were enough for either sale or personal use.
You either possessed the drugs and your main intentions were to sell them or obtained the drugs with the intentions of reselling them.
With all these factors there are other consequences of drug possession with three varying degrees of possession in which all are illegal. They include:
Actual Possession: In this case, you had the drug with you and had control over it. This means that you were caught red-handed by a police officer. The drugs must be found around you, in places such as your pockets, purse, backpack or any other clothing. If the police conducted the search on legal bases, the testimony of the officer who found the items is conclusive and will lead to a conviction. If you try to swallow, flush or throw away the item, the prosecutor will still try to prove the defendant "actually" had possessed it.
Constructive Possession: You don't have the immediate access to the illegal drug, but still had control over it or have the rights to controlling it. This means it could be in your property, office or over at a friend’s place. Although tough to prove, the prosecutor has first to give evidence that you had control over that dominion and the surrounding location where you possessed the drugs. Finally, the prosecutor must also prove you knew the items were illegal.
Joint possession: This involves two or more individuals who share the possession of illegal substances or drugs.
The prosecutor could also charge you with two different possession charges; the simplest being to prove that you were in possession of the said drugs for personal use. For possession with intent to distribute they must provide the evidence you were trafficking the drugs and the officer must be able to provide evidence such as baggies, larger quantities of drugs or cash. For the prosecutor to build a drug trafficking case, investigations for the distribution or sale of a drug will involve sting operations, attempts to catch individuals committing the crime. They can use HS 11352 to arrest the defendant if the police officers gained information regarding possession or sale from a confidential informant.
Common Legal Defenses for Drug Possession Charges
Fortunately, there are many legal defenses in which our drug possession attorney could use to argue in your defense in the state of California.
Police Misconduct, Illegal Searches and Seizures
Under the fourth amendment of the US constitution, the law protects the defendant from unlawful search and seizures, which is a very strong defense. If the officer in charge fails to establish probable cause or does not provide a legal search warrant preceding your arrest, your drug Possession attorney can call for the dismissal of the entire case. For example, any illicit drugs that were found in plain view after a valid traffic stop is a piece of credible evidence. But if the drugs were found in the trunk of a car which was forced open using a crowbar, and without the user's permission, they cannot be used as evidence. In this case abuse of power is known as entrapment. It involves the inducement of the defendant into buying drugs when in reality they would not have done it. In short, you were lured into buying the drugs. Note that, there isn't any abuse of power by the officer to lie when determining if the defendant possessed any drugs.
Lack of Possession
One of the most common defenses to a constructive possession charge is the lack of possession in that it happens almost every time. This type of defense is quite unique when the dominion and control element for constructive possession is tough for the prosecutor to demonstrate. The dominion and control element is when you show that you had the ability to control the illegal drug. Take for example, if you rent an apartment and the owner you rent from is not present or when you are on a bus where there are several individuals, it would be very difficult to prove to the court that one person possessed the drugs. Then for constructive possession, the attorney can deny the dominion and control to be in effect towards lack of possession.
In this, you might have possessed the drugs, but cannot be found to be guilty of the crime because you didn't know they were in possession of the illegal substance. Take the example of being given a package by messenger service, and contained inside are the drugs, whereby the messenger service is unaware of the contents of the sent package. Both you and the messenger cannot be held liable for actual possession of drugs in the court case. Unwitting possession can also be used for in the defense to constructive possession claim. If the officers carried out a search at your apartment and they found drugs that you were not aware of, your attorney could use the unwitting defense.
The state of California allows the use of medicinal marijuana. If the police searched your property and found any, you have a legitimate defense for medical use. That is if you have proof of medical authorization by licensed practice. If the Marijuana is below an ounce or if you have at the minimum of six (6) plants. The California statute allows this, since it is a limited amount of Marijuana.
Crime Lab Analysis
Just because it is white, it does not make the substance cocaine or LSD. The prosecuting attorney must prove to the courts that the impounded drugs are indeed what they claim them to be, meaning that they must send it to the government laboratories for analysis. The analyst must then give evidence in the trial in order to make the case.
Using Traditional Ways
Many of the courts will permit you with the possession of small amounts of illegal substances to pay fine, and in your pledge to complete a rehabilitation program whereby the charges will then be dropped. For you to get a qualification, you are expected to remain employed or be a student and pass the multiple drug tests administered. If you fail, you could be convicted and assigned the maximum sentence of the first charge that you receive.