Drug Crimes

Drugs and narcotics are the criminal areas that have witnessed the highest number of prosecutions and changes in the law. So, it means drug crimes like possession, use, sale, distribution, and production of illegal controlled substances are rampant. A conviction for these offenses carries the harshest sentencing guidelines, hence the need to work closely with an attorney to fight the charges. At California Criminal Lawyer Group in Santa Ana, we will give an overview of drug offenses we defend in this article to enable you to understand the type of charge you face.

Possession of Drugs

HS 11350 says it’s a crime to exercise command over drugs outlined under the Health Safety Code. If arrested, you will face charges of possession of drugs or controlled substances. The court will find you guilty if the DA demonstrates that you had knowledge of the existence and the characteristics of the narcotics. Additionally, you will be held accountable if the drugs were in your control or of sufficient quantity.

There are three many forms of drug possession which are:

1. Actual Possession 

You are deemed to be in actual possession of controlled substances if they are found in your purse, pocket, bag, immediate person, or body cavity. Note that fighting drug charges when you are located in actual possession of the drugs isn’t easy because you can’t claim you didn’t have them. Again, you could be guilty of actual drug ownership if the narcotics are not found within your immediate person. Still, authorities believe they were on your person a few moments before your arrest.

2. Constructive Possession

Constructive possession means the drugs aren’t within your immediate person, but they are in a different place under your management. For instance, if a search warrant is issued on a home that you own and drugs are found in your absence, you will still face drug possession charges because you have authority over the place. However, if you live in the house with someone else and drugs are found in your roommate’s handbag, you won’t face HS 11350 violation charges because the place where these narcotics were spotted is not within your immediate control.

3. Joint Possession

Joint possession occurs where you share any of the above forms of possession of illegal drugs with someone else. It means that when law enforcement finds illicit drugs in the kitchen of a shared apartment, you and your roommate will be arrested for joint possession of the drugs. The same case applies if the law enforcement finds you administering controlled substances in the company of friends. You will all be charged with joint possession of the drugs.

Note that if law enforcement only finds traces or remains of the controlled substances, you may not be guilty of drug possession. This is because the law requires the amount of the controlled substance to be significant enough to be ingested and cause some narcotic effects. If the amount isn’t adequate to be used as a narcotic, you are innocent under HS 11351.

If charged with drug possession and the prosecutor proves that you committed the crime beyond reasonable certainty, you will face misdemeanor penalties. The penalties include:

• Monetary court fines of no more than $1,000
• At least twelve months in jail
• A drug treatment program if you qualify for sentencing under Prop 36

However, there are few incidents where controlled substance possession is filed as a felony. You will face these felony charges where you have a criminal history of serious offenses like murder, rape, or sex offenses against minors aged 14 or younger. Felony illegal drug possession attracts no more than thirty-six months behind bars.

Note that before the passage of Prop 47 in 2014, narcotics possession under HS 11350 was a felony. Still, after the Safety Code took effect, the offense could be prosecuted as a misdemeanor or sometimes a felony based on the characteristics of the case.

PEN 1000 provides for a drug diversion program for individuals convicted for HS 11350 violations. Under the program, the drug court enters a deferred entry judgment where instead of going to jail after sentencing, you are admitted to a drug diversion program. Unfortunately, not everyone is eligible for the program. You must prove to the court that the diversion program will be beneficial not to spend time in jail. To do this, you need a criminal attorney in your corner to help you find elements present in your case to be suitable for drug diversion.

However, you must note that you wouldn’t qualify for drug diversion if your drug possession offense involved any form of violence.

Possession or Procuring Illegal Drugs for Sale

Possession or buying controlled substances for sale is defined under HS 11351. As per this Code, it’s illegal to sell or issue illicit drugs. The drugs in question could be prescription drugs, cocaine, meth, or heroin. For the prosecuting team to convince the court beyond reasonable certainty you acted in violation of HS 11351; they must prove the following:

• The illegal drugs were wrapped in bundles
• There were vast amounts of money found during apprehension
• Many people were entering and leaving your place
• The number of illegal drugs found in your ownership was adequate for sale and not for personal use.

The presence of evidence like scales, drug packaging materials, or weapons could also demonstrate that you were not only using the drugs, but they were for sale or distribution.

The critical aspect that must be present in your case for a conviction for HS 11351 to occur is the purpose or willingness to sell narcotics. But, again, you don’t need to sell controlled substances in person; even if you use someone else, the court will find you guilty.

Depending on the characteristics of your case, you can assert that the drugs were for use and not for sale or distribution. You avoid HS 11351 violation conviction by making this assertion, but the court could still find you guilty of controlled substance possession. However, HS 11350 carries fewer consequences compared to HS 11351. 

When convicted for possession of illegal narcotics for sale, you will face as much as 48 months in jail and court fines of no more than twenty thousand dollars. Although, if you have an experienced drug crime attorney by your side, they could negotiate for twelve months of probation. Nonetheless, you won’t qualify for drug diversion.

Differences between Illegal Drug Possession and Possession for Sale

Possession and possession for sale differ on the issue of purpose to sell. Under HS 11351, the prosecutor must show the drugs in your control were intended for sale. Some of the factors that help prove this element include:

The Number of Illegal Drugs

The prosecutor will demonstrate to the jury and the judge the drugs were for sale and not for personal use if the quantity found in your possession was more than what an average person could consume. However, this factor attracts much criticism from criminal defense attorneys as they claim drug addicts may keep large quantities of controlled substances to ensure they don’t run out of stock. Therefore, critics assert possession of large amounts of illegal drugs is no indication of possession for sale.

Drug Packaging

If, at the time of arrest, the drugs you had were packed in balloons, bundles, or baggies, it’s hard to claim you had packaged them that way for personal use. On the contrary, proper packaging is a clear indication of your intent to sell or distribute illegal narcotics.

Drug Paraphernalia

You could be charged with possession for sale or distribution if anything used to ingest drugs like syringes and needles is found in your possession. The presence of weighing scales, dilution equipment, cocaine spoons, and other lab equipment could signify that you possessed the drugs for sale.

You were Drugged or Intoxicated

If you were under the influence of drugs during the arrest, it is a suggestion that you intended to ingest and not sell the illegal substance. However, you will need an attorney to present this defense strategy in the right way because the prosecutor could counter the argument by claiming that most drug sellers are also users of the substance.

Sale or Shipping of Illegal Drugs

California HS 11352 codifies the sale or transportation of illegal drugs. The statute is distinct from HS 11351 and HS 11350 violations because it involves actual sale or shipping. HS 11531 focuses on intent or plans to sell narcotics without necessarily demonstrating actual sale or moving of the controlled substance.

The DA must demonstrate that you were selling, shipping, furnishing, or administering illegal drugs like Vicodin, Peyote, cocaine, or heroin to prove you are legally liable for the offense. The penalties upon conviction are:

• No more than nine years of county jail incarceration
• Monetary court-imposed fines not exceeding twenty thousand dollars

If found giving or selling drugs to minors or possessing colossal quantities of illegal drugs, you will face an increased sentence because these are aggravating factors. Also, the sentence could be increased if you crossed over two county boundaries when shipping the drugs.

Possession, Sale, and Shipping of Methamphetamines

According to HS 11377, it is illegal to possess meth. The offense is usually prosecuted as a misdemeanor under Prop 47. However, if the meth you kept was intended for sale, the crime becomes a felony under HS 11378. On the other hand, if you planned on shipping or transporting the meth, you will be charged with the transportation of methamphetamines. These separate HS Codes are intended to control the use, sale, and transportation of less severe narcotics like meth.

Possession of Marijuana or Cannabis for Sale

According to HS 11359, it is unlawful to possess marijuana with plans to sell. When found guilty of the offense, you may face a potential jail sentence of no more than thirty-six months. In addition, the court might order you to pay monetary fines of at most ten thousand dollars.

It’s worth noting that after the passage of Prop 64, any adult aged 21 or older can possess marijuana, but no more than an ounce. Alternatively, the California law allows you to plant no more than six plants of marijuana or purchase at most eight grams of marijuana concentrate every day. However, if a minor is found to have cannabis, they might face misdemeanor charges for possession of cannabis or marijuana in a school compound.

If the minor is found selling or carrying marijuana, they will face felony charges whose conviction attracts no more than sixty months in prison. However, this applies to children whose age ranges from 14 to 17 years, as they qualify to be charged in adult court. Furthermore, you will face felony charges if you have multiple prior drug crimes convictions.

Sale of Imitation Illegal Drugs 

California HS 109575 prohibits individuals from producing, possessing, or selling fake illegal drugs with the identical superficial appearance as genuine unlawful drugs. The offense is a misdemeanor, and upon conviction, you risk spending at most of six months in jail and acquire a monetary fine amounting to one thousand dollars.

On the other hand, HS 11355 prohibits you from offering to sell or distribute a controlled substance but instead supply or attempt to supply an imitation illegal drug. The law treats this offense harshly because giving fake drugs poses a risk to consumers. These drugs often result in overdose when the consumer realizes they have ingested counterfeit drugs and decide to find additional genuine ones.

The sale of imitation-controlled products is a misdemeanor, while the supply of fake drugs is a wobbler. A felony conviction will result in as much as 36 months in jail.

Sale or Possession for Sale Synthetic Marijuana and Stimulants

California statute criminalizes the sale of the designer or synthetic marijuana under HS 11375.5. You can easily spot these controlled substances because they are wrapped in plastic wrappings or aluminum foils and labeled “not for human consumption.”  Although the illegal drug contains traces of marijuana, most of the content is produced in the lab and could have harmful effects on human health upon consumption.

The offense of selling or having for sale designer stimulants or cannabis is a felony whose conviction may attract no more than 20 years in federal prison. Also, the court might require you to pay as much as one million dollars in monetary fines.

Opening and Keeping a Controlled Products Store

California HS 11363 criminalizes the act of opening and maintaining an outlet intended to store and continually distribute illegal drugs or controlled products. The offense is commonly charged alongside HS 11351, and when convicted, it is punishable by felony penalties.

The Illegal Manufacture of Controlled Products

As per HS 11379.6, it is unlawful to make or produce all kinds of narcotics ranging from meth to cannabis. In addition, the statute codifies that it is illegal to produce, compound, create, process, or convert narcotics. Finally, note that even offering to engage in the manufacturing process of drugs is also a crime.

When found guilty of this offense, you risk up to 84 months in prison. However, the punishment could be increased if there are aggravating circumstances in the case, like setting up the drug lab near a school or playground or producing colossal amounts of narcotics.

Luckily, police cannot just raid your home and arrest you for manufacturing narcotics because they have found equipment used in the process. The mere collection of production equipment isn’t enough. It must be coupled with the actual production. However, if chemicals used in the manufacturing process are found in your possession, and plan on using them for manufacturing, you could face charges for possession of materials used for manufacturing narcotics under HS 11383.5.

Particular legal circumstances can aggravate these charges and result in severe penalties. These factors are:

• Production of massive quantities of narcotics
• Causing death or bodily harm during the manufacturing process
• Prior convictions for drug-related crimes

Fighting Drug Crimes Charges

Narcotic officers arresting you for various incidents that count as drug offenses make errors which an experienced criminal attorney can exploit for a favorable outcome. The defense strategies the attorney can use include:

1. Ignoring Search Warrant Requirements

Under the 4^th amendment of the U.S. Constitution, it is unlawful for law enforcement officers to search your property or residence, lest they have a valid search warrant. However, there are exceptions to this rule when police can search without a warrant. These circumstances include:

• When you consent to the search
• If the search is on your vehicle
• A search during a legal arrest when law enforcement searches for a firearm or vital evidence that may be destroyed if not retrieved on time.
• A search and seizure conducted in an emergency

If the search that resulted in your drug-related charge was illegal and outside the exceptions mentioned above, your attorney can use PC 1538.5 to have the evidence thrown out by showing it was obtained unlawfully. The attorney will do this by filing a motion to suppress evidence.

2. You were Set Up

Your attorney could claim the arresting officers violated California entrapment statutes by luring you into a ploy. Entrapment occurs when you, a Californian, are persuaded to commit a crime that you couldn’t have otherwise committed. When it comes to entrapment, the attorney must focus on explaining the police officer’s conduct at the time of the crime and not your history as a citizen.

Here, the burden of proof shifts to the defense because you are the one to prove the officer's conduct amounts to entrapment. If the person who entrapped you is not a police officer, this defense strategy won’t work in your favor as you can only argue entrapment if the person involved is a police officer.

The attorney can claim that you were convinced that the conduct doesn’t amount to a crime, the offense won’t be noticed, or you will be rewarded, which persuaded you to engage in crime. If this is the case, your violation will be considered entrapment, and the charges will be dropped.

3. The Officers Relied on a Bogus Confidential Informant (CI)

Confidential informants, primarily those who trade personal information in exchange for money, are very unreliable. Compensation motivates these individuals to share information with law enforcers, meaning they could lie just to obtain the reward. Nevertheless, the law prohibits law enforcement from creating personal relations with confidential informants or rewarding them with money that is likely to be used in purchasing drugs.

Your attorney can request for the character of the informant to be revealed to learn various ethical issues about them to discredit their information and show the officer made an error by arresting you for a drug offense.

4. Police Officers Misled the Judge to Acquire a Search Warrant

Most of the evidence in drug offenses is obtained through search and seizure. So, police are required to obtain a search warrant, allowing them to conduct searches leading to arrest. And because they know without a warranty, all their efforts will be in vain as the evidence is inadmissible. Moreover, they might provide misleading information to the judge just to obtain the warrant.

The judge can only issue a warrant if they are persuaded that the evidence in your residence, home, or vehicle is instrumental in proving you engaged in a drug offense. Your attorney can challenge the issuance of the warrant by claiming that the affidavit the judge relied upon to issue the warrant contained wrong information or statements provided knowingly by the officer to demonstrate probable cause.

If the judge realizes the information provided in the sworn statement was false or crucial details were left out, they will squash the warrant. Therefore, the evidence obtained using the warrant may be removed from the case leaving the prosecuting team with weak or insufficient evidence causing reduction or dismissal of the case.

Another defense you could apply when fighting drug charges is claiming the drugs were for personal use or belonged to someone else. Unfortunately, not all attorneys in Santa Ana can provide the defense you need, so you must be careful when picking drug crimes defense attorneys.

Find a Santa Ana Criminal Defense Attorney Near Me 

Not all people charged with drug crimes are guilty. Law enforcers entrap some. Again, the officers might interfere with the evidence to ensure you don’t avoid the charges and a conviction. At California Criminal Lawyer Group in Santa Ana, we are here to ensure you are not wrongfully convicted for these crimes by educating you on several drug offenses, their penalties, and defense strategies. Call us today at 714-844-4151 for a free evaluation of your case.