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Drug Crimes in California are offenses involving drugs that have been legally classified as controlled substances. The most common drugs involved in drug crimes include cocaine, ecstasy (MDMA), heroin, methamphetamine, LSD, marijuana, and prescription pain killers (Percocet, Vicodin, Morphine, Codeine). Most of the drug laws in California and drug crimes found therein are outlined in California’s Health and Safety Code, although there are a few drug crimes found in other areas of the law. This section will introduce and briefly touch upon some of the most commonly charged drug crimes in the state of California.
Possession of a Controlled Substance
Under Health & Safety Code 11350, it is unlawful to possess controlled substances such as cocaine, heroin, prescription drugs without physician’s authorization, and other narcotics.
To be found guilty of simple possession, the prosecutor must prove you possessed the drug (either on your person, in your home/car/controlled space, or in a joint space), that you were aware of your possession of the controlled substance and its character, and that you possessed a usable amount of the drug. Common legal defenses include lack of awareness of possession or character of the drug, illegal search/seizure, valid prescription, and possession of less than a sufficient quantity for use of the drug.
If found guilty of possession of a controlled substance, you will typically be charged with a misdemeanor, meaning you will face a fine of up to $1,000 and/or a maximum sentence of one year in county jail. You can be charged with a felony only if you have committed a violent serious felony in your past, such as vehicular manslaughter. In this case, you will be sentenced to 16 months, 2 years, or 3 years in jail depending on the severity of the crime and your criminal history. However, most people found guilty of simple possession are eligible for alternative sentencing, which allows you to attend drug counseling in lieu of the normal penalties.
Possession of Methamphetamine
Under Health and Safety Code 11377, which is very similar to HS 11350, it is illegal to possess methamphetamine, or confusingly despite the name of the crime, other narcotics such as MDMA, certain anabolic steroids, and PCP, among other substances. The elements the prosecutor must prove for you to be found guilty of possession of methamphetamine are identical to those for simple possession of a controlled substance, as are the common legal defenses.
The penalties for possession of methamphetamine and other drugs under HS 11377 are also highly similar to the penalties for simple possession of a controlled substance, with one major difference involving the possession of a large quantity of methamphetamine. If you are found to be in possession of more than one kilogram of methamphetamine, you will face an additional 3-15 years in a state prison, depending on the exact number of kilograms found in your possession. Most people found guilty of possession of methamphetamine are also eligible for alternative sentencing through drug counseling.
Under the Influence of Controlled Substances
Under Health & Safety Code 11550, it is against the law to use a controlled substance and/or be under the influence of a controlled substance, whether it be those found under HS 11350 or 11377. To be found guilty of using a controlled substance, the substance must be used at the time of the arrest, or recently used, usually meaning up to five days before the arrest, although the definition for recent use is not exact and subject to debate. To be found guilty of being under the influence of a controlled substance, you only need to be found under the influence in a detectable manner, you don’t need to be seriously impaired or engage is any other kind of misconduct.
Legal defenses against this charge include arguing an unrelated condition caused you to act as if you were under the influence of drugs. You can argue that you were only acting as if you were under the influence of a controlled substance because you were severely dehydrated, suffering from acute sleep deprivation, or extremely intoxicated only as the result of excessive alcohol consumption. Other common legal defenses against accusations of use of a controlled substance and/or being under the influence of a controlled substance include the possession of a legally obtained prescription for the controlled substance, as well as involuntary use of the controlled substance.
The penalties for violation of HS 11550 include a maximum sentence of 1 year in county jail, maximum five years of probation, and community service. A third conviction within seven years of the first conviction, and repeated refusal of drug treatment, will result in a minimum jail sentence of 180 days. Most people found guilty of this crime qualify for alternative sentencing through drug counseling.
Possession of a Controlled Substance with Intention to Sell
Under Health & Safety Code 11351, it is a crime to possess controlled substances with the aim to sell those drugs. To prove you were in possession of an illicit drug with an intention to sell it, prosecutors look for a few key indications, such as the possession of the controlled substance in a large quantity, the possession of scales, instruments of measurement, or other tools covered in residue of the controlled substance, the packaging of the controlled substance in a number of small containers such as plastic bags or vials, a large amount of cash, or evidence of people constantly entering and leaving your house throughout the day.
The common legal defenses are the same as those found in the Possession of a Controlled Substance section. The only different common legal defense is the argument that the controlled substance was only in your possession for personal use, and not intended for sale. This is the most common legal defense for this crime, for while possession of a large amount of a substance may indicate to some you are guilty of intent to sell, it can be argued that this large amount was still just for personal use if scales/instruments of measure are not discovered.
A violation of HS 11351 is always charged as a felony, resulting in a jail sentence of 2 years, 3 years, or 4 years and/or a fine of up to $20,000. If convicted of possession of cocaine base with intent to sell, the punishment increases to 3 years, 4 years, or 5 years and/or a fine of up to $20,000. If you are found in possession of more than one kilogram of heroin, cocaine base, or cocaine your sentence may increase by 3-25 years dependent on the amount found in your possession.
Note: The equivalent law for possession of methamphetamines is found in HS 11378.
Transportation or Sale of a Controlled Substance
Under Health & Safety Code 11352, the transportation or sale of a controlled substance is deemed a violation of the law. This statute also makes it illegal to administer or otherwise furnish controlled substances, freely give them away, import them into the state of California, or offer to carry out any of the acts detailed above.
Many of the elements of proof required for prosecution are the same as the ones found in the simple possession section. It also must be proven that you did indeed transport the drugs from one location to another. If being charged for offering to sell, transport, or furnish drugs, it must be proven that you were actually intending to carry out the act, and not just making promises that you had no intention of keeping.
The common legal defense for violations of HS 11352 are the same as those for simple possession. The only common defense unique to this crime is that of entrapment. If your defense lawyer can prove you were an otherwise innocent person who was coerced into selling/transporting drugs by an undercover police officer, you can be acquitted of the charge.
Violations of HS 11352 are always charged as felonies, with the consequences including felony probation, a jail sentence of 3, 4, or 5 years, or if you transported the illegal drugs across 2+ county lines, then 3, 6, or 9 years and/or a fine of up to $20,000. Your sentence can be enhanced depending on the exact controlled substance you transported/sold, the quantity, your prior felony drug convictions, or the type of person you sold drugs to or involved in the transportation/sale process (mental health patient, pregnant person, minor, and others).
Note: The equivalent law for transport/sale of methamphetamines with intent to sell is found in HS 11379.
Manufacturing of Controlled Substances
Under Health and Safety Code 11379.6, it’s a crime to participate or offer to participate in any part of the manufacturing process for a controlled substance. This includes the preparation of legal chemicals that you know will be used in the production of controlled substances. It does not include the gathering of supplies or other preparations for drug manufacturing.
The most common legal defense for this crime is the argument that you were only engaged in preparatory actions, that you hadn’t yet engaged in actual drug manufacturing, even if you were likely intending to do so. Another employable defense is that the drug manufacturing lab was only discovered as a result of an illegal search and seizure. A final common legal defense is that while you may have been present at the drug lab at the time of its discovery by authorities, you had nothing to do with the discovered production of controlled substances.
If found guilty of manufacturing a controlled substance, you face a felony sentence of 3 years, 5 years, or 7 years in jail and/or a fine of up to $50,000. If you are found guilty of only offering to do so, you are subject to a jail sentence of 3 years, 4 years, or 5 years. Your penalty may be enhanced if you manufactured large quantities of certain substances, caused injury/death as a result of your manufacturing effort, you have prior felony drug convictions, or if the manufacturing took place near and/or in the presence of a minor or near an occupied structure.
DUI of Drugs
Under Health and Safety 23152(f), it is illegal to operate a motor vehicle under the influence of drugs, and under Vehicle Code 23152(g), it is illegal to operate a motor vehicle while under the influence of both drugs and alcohol. It is considered against the law to drive under the influence of illegally possessed controlled substances, such as cocaine and heroin, as well as certain legally possessed prescription drugs, marijuana, and some over-the-counter medications such as Ambien.
There are no specific legal limits for drug intoxication like there are for alcohol, it is up to the discretion of the on-site officer to evaluate whether or not you are too impaired to operate a motor vehicle as a result of drug use. Oftentimes, drug recognition experts will be called to the scene to make an evaluation, or a blood/urine test will be taken from the suspect after being arrested on suspicion of driving under the influence of drugs.
Typical legal defenses include the argument that there existed no probable cause for the officer to initiate the traffic stop, incorrect procedures were followed when collecting/analyzing/storing the blood/urine samples, or that the suspect was not properly informed of his/her Miranda rights, most importantly the right to remain silent.
DUI of drugs is typically charged as a misdemeanor, with the penalty being 3-5 years of DUI probation, a fine of at least $390, suspension of your driver’s license for a minimum of 6 months, and a required 3 months of DUI school. You can also be charged with a felony, depending on your level of intoxication and relevant criminal record, with the penalty being 1.5 years-4 years in jail and/or a fine of between $1,000-$5,000, in addition to the suspension of your driver’s license for a minimum of one year.
Possession of Unlawful Drug Paraphernalia
Under Health & Safety Code 11364, it is against the law to possess drug paraphernalia, meaning any kind of device used for the illicit injecting or ingesting of a controlled substance. These include meth pipes, spoons for cocaine inhalation, or needles/syringes used to inject heroin or other illegally possessed controlled substances.
To prove you guilty of possession of drug paraphernalia, the prosecutor must prove to the court that you were indeed in legal possession of drug paraphernalia. They also must prove that you knew of the presence of the paraphernalia, and that you understood that it was illegal drug paraphernalia and not some form of legal paraphernalia.
The most common defense against a charge of possession of unlawful drug paraphernalia is that the object wasn’t actually unlawful drug paraphernalia. Many people have been acquitted of these charges by proving the device in question was used to administer prescribed drugs, or was used for a legal substance such as tobacco. Other common defenses include the argument that you didn’t know it was paraphernalia, the paraphernalia was found through an illegal search/seizure, or that you reasonably weren’t aware of the paraphernalia’s presence.
Possession of illegal drug paraphernalia is always charged as a misdemeanor, the penalties for which are a jail sentence of up to 6 months and/or a fine of up to $1,000. Most people found guilty of this crime qualify for alternative sentencing via drug counseling.
Marijuana Laws (Possession, Sale, Transportation)
While the possession of small amounts of marijuana was legalized at the beginning of 2018, the large-scale cultivation, sale, or transportation of marijuana without the proper permits is still illegal. It is still illegal for people under 21 to possess marijuana (HS 11357), for people over 21 to possess more than 28.5 grams of marijuana (HS 11357), to cultivate over 6 marijuana plants (HS 11358), possess marijuana with intent to sell (HS 11359), sell marijuana without a license (HS 11360), or sell to a minor (HS 11361).
Illegal possession of marijuana is either charged as an infraction or a misdemeanor, depending on the amount possessed, the age of the possessor, and the location where the person was found possessing marijuana (i.e. on or off school grounds). Infractions usually only involve a penalty of drug counseling. Misdemeanors involve a fine of $250-$500, and for possession of over 28.5 grams, a 6-month jail sentence. Cultivation/possession with intent to sell without a license is usually charged as a misdemeanor with a penalty of up to 6 months in county jail and/or a fine of up to $500-$1,000, but can be charged as a felony if the defendant has violent felonies on their record, previous cultivation convictions, or maintains a sex offender status. Sale to a minor is always charged as a felony, with a penalty of 3, 4, 5, or 7 years in jail depending on the age of the minor and your criminal history.
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