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In California, possessing controlled substances—also known as simple possession— is against the law. There are two main laws that criminalize the possession of controlled substances. The first is California Health & Safety Code 11350, which makes it illegal to possess specified controlled substances found in the federal Controlled Substances Act, without a doctor-approved prescription. These controlled substances include LSD, Heroin, Cocaine, Vicodin, Opiates, Peyote, Oxycontin, Codeine, and other drugs (a full list can be found here). The second law, California Health & Safety Code 11377, criminalizes the possession of other illegal drugs, such as methamphetamine, some anabolic steroids, MDMA, PCP, as well as other stimulants and so-called “party drugs.”
Related Offenses for Drug Simple Possession
There is a list of crimes one can face charges for that are closely associated with illegally possessing controlled substances. Penalties for these crimes are much harsher than penalties for just simple possession. Here are a few of these related offenses:
Possessing a Controlled Substance with Intent to Sell: In Health & Safety Code 11351, it is illegal to possess the aforementioned controlled substances or narcotics summarized in the federal Controlled Substances Act with an intent to sell them. There are certain indications prosecutors use to prove an intent to sell, these include a large amount of controlled substances, scales with drug residue, the drug placed in small quantities in separate bags, people regularly entering and then quickly leaving a house, and large amounts of cash in small denominations. The counterpart of this law for methamphetamine, MDMA, PCP, etc. (the drugs illegal under HS 11377) is Health and Safety Code 11378.
Sale or Transportation of a Controlled Substance: Under Health & Safety Code 11352, it is illegal to sell or exchange for goods/services, transport with the intent to sell, administer or provide in any way, give away for free, or offer to perform any of the acts listed above, the aforementioned controlled substances or narcotics summarized in the federal Controlled Substances Act. The counterpart of this law for methamphetamine, and the other drugs illegal under HS 11377, is Health and Safety Code 11379.
Driving Under the Influence of Drugs: There are two laws that outlaw the operation of a motor vehicle under the influence of drugs: Vehicle Code 23152(f) which makes it illegal to drive under the impairment of drugs, and Vehicle Code 23152(g), which makes it illegal to drive under the simultaneous influence of both alcohol and drugs. While illegal drugs, such as heroin, LSD, and cocaine, are included in the drugs that fall under these two Vehicle Codes, it is also unlawful to drive under the influence of legal drugs such as marijuana, prescription medications, and some over-the-counter medicine (such as cold medicine or Ambien). There is no exact legal limit for driving under the influence of drugs, so it only becomes illegal to drive under the influence of drugs if these drugs cause a noticeable negative effect on driver performance.
Manufacturing a Controlled Substance: Under Health and Safety Code 11379.6, it is illegal to knowingly engage in or even to offer to engage in any step of the preparing, manufacturing, compounding, or processing of the controlled substances outlined above. This means that the preparation of a certain substance or chemical, even if that substance or chemical itself is legal, when done knowingly to contribute to the production of a controlled substance or illegal drug, is illegal under HS 11379.6.
For You to be Found Guilty, The Prosecutor Needs Proof in These Areas
Being found guilty of drug possession is not as simple as just being found with the drug on your person. For you to be found guilty of simple drug possession, the prosecutor is required provide proof in the following areas.
- You Possessed the Controlled Substance: The prosecution must prove that you indeed possessed the controlled substance at the time of your arrest. There are three main forms of possession, any of which the prosecutor can use to prove that you possessed the illegal substance in question. The first is Actual Possession, the most common form of drug possession. Actual Possession means the drug was found physically on your person by an officer of the law, whether it be in your pocket, in your bag/purse, or hidden in a body cavity. The second is Constructive Possession, the definition of which is unclear and frequently debated. The general definition is that Constructive Possession means that the controlled substance was within your reasonable control. This usually means the drug was in a place where you could access it with relative ease, such as your vehicle (car, motorcycle, bike, etc.), your residence, locker at school, or any other place that can be reasonably interpreted as belonging to you or under your control. The third is Joint Possession, which is really an extension of the two aforementioned forms of possession. Joint Possession is normally applied by the prosecutor when the controlled substance is found in a shared location, such as a shared residence or a shared gym locker.
- You Were Aware of Your Possession of the Controlled Substance: In order for the prosecutor to prove someone guilty of simple drug possession, the prosecutor is required to be able to show that you knew the illegal drug was in your possession. If the controlled substance came into your possession through no fault of your own, or if the drug was placed on your person by another party, then it cannot be proven that you were aware of your possession of the controlled substance.
Example: You let your friend borrow your car over the weekend. Without your knowledge, your friend left a large amount of cocaine under the passenger-side seat. Here, the prosecutor would have difficulty proving you were aware of the possession of the cocaine, since it was placed by a friend without telling you in a place where you wouldn’t normally look.
- You Were Aware the Drug was a Controlled Substance: The prosecutor is required to prove that you were fully aware the controlled substance on your person was in fact a controlled substance. You can be acquitted of the crime if it can be shown in a court of law that you were under the impression that you were in possession of only a legal drug, or even just a legal substance.
Example: After waking up with a terrible headache, you take a few pills out of a friend’s drawer without reading the label on the pill bottle and put them in your pocket, assuming they were Tylenol tablets. However, in reality these were actually Vicodin pills, a controlled substance for which you need a prescription to possess legally.
- You Possessed a Sufficient Quantity of the Drug for Use: To be found guilty of simple drug possession, the prosecutor is required to also be able to prove that the amount of the controlled substance you possessed was sizable enough for use. Contrary to common opinion, a usable quantity of a controlled substance does not mean the amount of substance needed in order to experience the effect of the narcotic. A sufficient quantity of a controlled substance for use simply means enough of the drug to be able to be ingested/consumed. This means while that small amounts of an illicitly possessed drug can count as a sufficient quantity of a drug for use, trace amounts of a drug that could only be found say by using specialized lab equipment do not qualify as a sufficient quantity for use.
Typical Legal Defenses for Simple Possession Cases
Listed below are a few of the legal strategies employed by defense lawyers to defend their clients against accusations of possession of a controlled substance.
Not Aware of Possession of a Controlled Substance: Your lawyers can attempt to prove that you weren’t aware that you were in possession of the controlled substance in question. This can be done by making an effort to demonstrate how the drug was planted on the person of the defendant or in their house/vehicle/locker, say by an angry third party who wanted to frame the defendant for a crime. Your defense lawyer will also most likely try to show how you showed no signs of nervousness when being searched for the illegal substance, and how you then appeared totally bewildered when the controlled substance was discovered by police officers, although this alone cannot acquit you, as many people know how to become good actors in front of police officers. Lastly, providing evidence that suggests a reasonable reason for unknowing possession of an illegal substance, for instance by demonstrating that the pants in which the illegal drugs were found were just minutes ago borrowed from a friend, is an effective strategy.
Illegal Search and Seizure: Your attorney can attempt to have your drug possession case thrown out of court via the use of a motion to suppress evidence by proving that the controlled substance was discovered by illegally searching and seizing your property. There are a few methods by which your legal representative may file a successful motion to suppress evidence when it comes to illegal search and seizure. If a police officer searches your home and discovers a controlled substance, but the officer did not obtain a warrant to search the property, then your lawyer can successfully file a motion to suppress evidence. If a police officer searches your home with a warrant and discovers a controlled substance, but only discovers the controlled substance by exceeding the scope of the warrant, a motion to suppress evidence can be filed. If your lawyer can prove the “probable cause” that prompted the search was completely unsubstantiated and done without reasonable evidence for a probable cause, then the case can also be thrown out through a motion to suppress evidence. Illegal traffic stops, detainments as a result of racial profiling, and excessive force used to seize the controlled substance are also viable reasons for a drug possession case to be thrown out of court.
Valid Prescription for the Controlled Substance: If your attorney can prove that you held a valid prescription for the drug in question at the time when the controlled substance was discovered in your possession, you will most likely be found not guilty. However, your attorney must be able to prove that you possessed the controlled substance in line with the rules detailed in the prescription given to you by a licensed physician. If you possess a larger amount of the controlled substance than your prescription specifies, you will almost certainly be found guilty of simple possession.
Not Aware of the Character of the Controlled Substance: If your attorney can prove that you may have been aware you were in control of a drug, but not aware that you were in control of a controlled substance that you were not prescribed or otherwise authorized to possess, you may be found not guilty of simple possession. If it can be proven that you accidentally grabbed the wrong drug off the medicine cabinet in your shared home, or that the pharmacist made a mistake and accidentally gave you the wrong drug, it is unlikely that you will be convicted.
Not in Possession of a Sufficient Quantity of the Drug for Use: If it can be proven that the amount of controlled substance you possessed does not qualify as a sizable enough quantity for the drug to be used, you cannot be found guilty of simple possession. If your lawyer can demonstrate to the court that the amount of the controlled substance was only a trace amount, say a few microscopic fragments of the cocaine found in the corner of a baggy, then you will probably be acquitted of the charges.
Temporary Possession of Drugs: Under California law, you are legally allowed to temporarily possess a controlled substance if the reason for your possession of these drugs is to destroy or otherwise get rid of them, in order to stop another person from unlawfully possessing and/or using the controlled substance, usually a family member or close friend. This therefore means that your lawyer can lead the court to find you not guilty if he/she can prove that you were only temporarily possessing the drugs in accordance with this law. However, it should be noted that this law does not apply in situations when the controlled substance is about to be seized by law enforcement, and you only take possession of the drugs to prevent your friend/family member from being arrested.
Not in Actual Possession of the Controlled Substance: While this defense may seem a bit nonsensical, as you may wonder how someone could be arrested for simple possession when not actually in possession of a controlled substance, surprisingly people are frequently arrested for neither actual, nor constructive, nor joint possession of the relevant drug. People are sometimes arrested for standing near drugs found on the ground, or for unknowingly sitting near a stash of drugs hidden in a public place. If your lawyer can prove that you were not in actual/constructive/joint possession of the controlled substance, you will most likely be acquitted.
Penalties for Simple Possession
Penalties for Violation of Health & Safety Code 11350:
The penalty for possession of a controlled substance according to HS 11350 is typically a misdemeanor, with a conviction resulting in a fine up to $1,000 and/or up to one year in county jail. You will only be charged with a felony if you previously committed a crime on a list of serious felonies (crimes such as sexually violent offenses, murder, etc.) or a sex crime that put you on the sex offender registry. If convicted of a felony, you face either 16 months, 2 years, or 3 years in state prison depending on the nature of the offense and on your criminal record.
Penalties for Violation of Health & Safety Code 11377;
Penalties for possession of methamphetamines or the other specified substances under HS 11377 are exactly the same as the penalties under HS 11350.
Alternative Sentencing Option for Both HS 11350 and 11377:
Violators of either Health & Safety Code 11350 or 11377 may be eligible for deferred entry judgement, if they haven’t been convicted of a violent crime, engaged in more serious drug crimes beyond simple possession, or have any felony convictions in the last 5 years. Through either Prop 36, PC 1000, or California Drug Court, you can enter a plea deal and as a result your sentence is formally delayed for 12-18 months. However, as a condition of this plea deal, you are unequivocally required to enter and complete state-approved drug counseling within the 12-18 month grace period. If you complete the counseling within the time limit, your case will be dismissed. If you don’t complete the counseling, you will be convicted of the offense and forced to face the original penalties.
Find a Los Angeles Criminal Attorney Near You
After reading the information on this web page, do you still have questions/concerns about drug possession cases? Are you looking to hire an attorney to represent you in a case involving drug possession charges? Look no further, call 310-502-1314 now to speak on the phone with a highly-respected criminal attorney at Los Angeles Criminal Lawyer, who will give you a free consultation and/or evaluation of your case, no formal commitment is required.
