Possession of controlled substances includes well-known illegal drugs like cocaine, heroin, LSD, and prescription drugs like oxycodone, Vicodin, and valium. You will face automatic prosecution if you are in possession of illegal drugs. On the other hand, It is only a crime to have prescription drugs on your person without a valid prescription. Though possession of controlled substances is a misdemeanor, the consequences of a conviction are harsh. You thus require representation to fight the charges to avoid the penalties. The California Criminal Lawyer Group attorneys’ experience fighting drug crimes is what you need to fight controlled substance possession if you are arrested and face charges in Santa Ana.

This article addresses the crime as defined under California Health and Safety Code 11350, the penalties arising from a conviction, and the defense options we can use to challenge the charges.

Health and Safety Code 11350’s Definition of Possession of a Controlled Substance

Possession of controlled substances is both a federal and state crime. If you have a controlled substance in California, you violate HS 11350. Additionally, you should only have medication if you have a valid prescription.

As with all criminal cases, the burden of proof rests with the prosecution. The DA should prove the following elements for you to be found guilty under HS 11350.

  • You possessed the controlled substance in the case
  • You lacked a prescription for the substance
  • You were aware of the substance’s presence
  • You knew of the substance’s nature and that it was controlled
  • You had a usable quantity of the controlled substance

It is crucial to address the above elements to understand an HS 11350 violation.

Controlled Substances

California law defines a controlled substance as a chemical or drug whose possession, use, and manufacture is regulated by the government in accordance with the United States Controlled Substances Act.

Controlled substances fall under six categories. The DA will have to demonstrate to the court that you were found possessing any drugs listed below.

  • Schedule I drugs — These drugs include cocaine, opiates, heroin, and hallucinogens like mescaline
  • Schedule II drugs — This category lists morphine, raw opium, oxycodone, and other narcotics as controlled
  • Schedule III drugs — This category lists anabolic steroids and pentobarbital as controlled
  • Schedule IV drugs — Includes prescription drugs like zolpidem and diazepam
  • Schedule V drugs — This schedule includes lesser-controlled prescription medication like lower doses of codeine combined with non-narcotic active medicinal ingredients

Marijuana and methamphetamine possession does not fall under HS 11350. The DA will pursue possession of marijuana under HS 11357 and HS 1377 for possession of methamphetamines and other stimulants.

Possession of a Controlled Substance

Possession under HS 11350 refers to an individual being in control of a prohibited substance. Control is exercised personally or indirectly through another individual. Further, possession is not limited to holding or touching the drug. It refers to it being on your person. Therefore, you will be deemed to have the substance if it is in your pocket, closet, or storage unit.

Note: agreeing to purchase a controlled substance in and of itself is not possession.

The DA can establish possession through three forms:

  • Actual possession — If you were holding the substance at the time of the arrest.
  • Constructive possession — You have constructive possession of a controlled substance if it is in a place you can easily access or within your control. The DA seeks to show you could easily retrieve the narcotics and physically possess them under constructive possession.

For example, having the substance in your gym locker, in the car, at your residence, or stashed underneath a rock in the backyard are locations you can easily access.

  • Joint possession — Joint possession includes both actual and constructive possession where two individuals have ownership of the substance. In most cases, joint possession is established when the drug is found in a shared space or two individuals pool money together to purchase the controlled substances.

Knowledge of the Controlled Substance

The definition of knowledge of a controlled substance includes being aware of the presence of the controlled substance and knowing that the drug is controlled.

In proving your awareness of the controlled substance, the DA does not have to demonstrate you knew the specific drug you had. He/she has only to prove you knew the substance was some type of drug.

Usable Quantity

Usable quantity denotes an amount a person would use for recreation or other reasons. It, therefore, follows that negligible quantities like dust or debris fail to meet this threshold. Additionally, the amount does not have to be consequential, for example, enough to cause intoxication or potent enough to cause inebriation.

Analog Drugs

HS 11350 further makes it a crime to have analog drugs, that is:

  • Drugs with a similar structure to that of a controlled substance or
  • Drugs that significantly impact the nervous system to an equal or greater degree than a controlled substance

Penalties Resulting From a Possession of a Controlled Substance Conviction

Proposition 47 reclassified drug possession charges from felonies to misdemeanors. Thus, convictions for an HS 11350 violation are punishable by a jail sentence not exceeding one year and a fine of up to $1,000. You can also be placed on probation instead of serving time in jail. If you are on probation, be prepared for random drug tests and searches by the police. You could also be sent to a drug diversion program as part of your probation.

A jail term or probation is a reserve for individuals without prior convictions for specific grave or violent offenses. This rule extends to registered sex offenders. If you have a prior conviction for serious crimes like murder and gun crimes, or you are a registered sex offender, you will be convicted on felony charges. These charges are punishable by up to three years in jail.

Defenses Used in Possession of a Controlled Substance Case

Depending on your circumstances, your attorney can challenge the DA’s case by presenting any defense below.

Lack of Possession

Prosecutors must prove beyond a reasonable doubt that you constructively, actually, or jointly had a controlled substance beyond a reasonable doubt. Failure to which, your attorney can challenge his/her case based on lack of possession.

Unlawful Search and Seizure

Police in most situations become overzealous in the discharge of their duties. Officers conduct raids, searches, and seize evidence without a search warrant in these circumstances. This act is a violation of a defendant’s Fourth Amendment rights.

In the absence of a warrant, officers should seek your permission to search your property. For example, officers should ask for your consent to check the trunk of your car. Any evidence obtained from an illegal search is inadmissible in court.

However, if the controlled substances were in plain view at the time of your arrest, then the evidence will be admissible, for example, being arrested on a public bench with packed cocaine on the seat. The cocaine, in this case, is in plain view.

Victim of Entrapment

Sting operations are legal. However, when officers during the operations entice a suspect to buy or use a controlled substance, he/she would otherwise not purchase or use, these actions amount to entrapment. Enticements considered beyond the officers' scope include using threats or harassing an individual to commit a crime. Your attorney will use the entrapment defense to challenge the DA’s case in this situation.

Valid Prescription

Prosecutors bear the responsibility of proving you lacked a valid prescription. All your attorney will do is produce a written and legal prescription, and your case could be dismissed. Licensed dentists, physicians, veterinarians, and podiatrists are the only individuals who can issue prescription medicine.

Chain of Custody Challenges

The arresting officers can mishandle drugs. Mishandling happens when surrendering and storing the narcotics as evidence. If this happens, it is possible to question the DA to prove that the drugs are the ones obtained during your arrest.

Defense attorneys cast doubt in the prosecution’s case under the chain of custody argument if he/she has reason to believe the officers could have mishandled the drugs at any point from the seizure to the storage of the drugs.

Impact of a Conviction on Gun Rights and Immigration Status

After a felony conviction of an HS 11350 violation, gun owners lose gun rights. It is illegal for felons to acquire, own, or possess a firearm in California. Therefore, if convicted, you will lose your guns. If found with or that you own a firearm post-conviction, the DA could institute gun violation charges.

Non-citizens risk deportation to their country of origin if convicted of having a controlled substance. Further, you will be marked as inadmissible, which means you will be denied re-entry to the US.

Possession of Marijuana and Methamphetamines

As pointed out earlier, prosecution of possession of marijuana and methamphetamines is done per HS 11357 and HS 11377, respectively.

  1. Marijuana Possession

Proposition 64 legalized personal and recreational marijuana use for adults above 21 years in California. Despite adopting the proposition, specific actions are illegal, as detailed below.

Possession of Marijuana Exceeding One Ounce

If arrested with more than 28.5 grams of marijuana or more than 8 grams of hashish, concentrated cannabis, you will face charges under HS 11357. This offense is a misdemeanor, and adults above 21 years are liable to a fine of no more than $500 and a jail sentence not exceeding six months.

Should you be less than 18 years at the time of your arrest for the same quantity, you will be charged with an infraction. The infraction is less serious than a misdemeanor. Thus convictions result in no jail or fine requirements. However, you will be required to attend a court-mandated drug and counseling program and serve community service hours.

Possession of Hashish or Marijuana by Minors

For purposes of marijuana laws, a minor is an individual less than 21 years of age. It is illegal for minors to have hashish or marijuana.

Violations of this section are punishable by a fine not exceeding $100 for individuals between 18 years and over. Any first-time offenders below 18 years will be required to spend 4 hours in a drug education program and 10 hours of community service.

If you are under 18 years with a prior record, you will be required to attend 6 hours of drug education and serve up to 20 hours in community service.

Possession of Marijuana on School Grounds

It is an offense to have marijuana on K-12 school grounds when schools are open and during school hours or in after-school sessions.

Adults are liable to a fine not exceeding $250 for a first-time offense. Minors under 18 years commit an infraction for the aforementioned offense. A conviction results in a court-mandated attendance of a drug program and community service.

  1. Possession of Methamphetamines (Meth)

Methamphetamine is a controlled substance. Various names refer to methamphetamines, including meth, crystal meth, rock, blow, tina, ice, speed, crank, glass, or chalk. Meth treats ADHD. Therefore possession of the drug is only illegal if you do not have a valid prescription from a licensed medical professional.

Meth use is regulated at the federal and state level. It is a crime under HS 11377 to have methamphetamines without a valid permit at the state level. It is also important to note that possession of meth by medical professionals is not illegal.

You can be either charged with simple possession or possession with the intent to sell. The decision is made after considering the following factors:

  • Your statement — Prosecutors determine your intention based on your admission. Should a witness testify that you had the meth for personal use, simple possession charges under HS 11377 will be preferred. If there is evidence of you stating you intended to sell the meth you had, the DA could pursue possession for sale charges, a violation of HS 11378.
  • Quantity of methamphetamines — High quantities of meth indicate an intent to sell, while fewer quantities could be for simple use.
  • Packaging of the meth — Prosecutors can conclude one bag of meth points to personal use. Possession of multiple baggies or bindles, on the other hand, suggests an intent to sell.
  • Presence of drug paraphernalia — Drug paraphernalia includes needles, straws, or pipes. If any of these are found on or around you with the meth, you could face charges under HS 11377. The paraphernalia will be bagged as evidence.

Simple possession is a misdemeanor offense. You could spend up to one year in jail or a fine totaling $1,000 upon conviction.

Alternatively, the DA could decide to pursue felony charges for simple possession if you have a prior conviction. The crimes considered as priors are sex crimes or serious felonies, including sex crimes against minors, murder, gross vehicular manslaughter while intoxicated, sexual violence offenses.

If convicted of a felony charge, you could spend 16 months, 2, or 3 years in jail.

Possession of meth with the intent to sell is a felony, punishable by a jail sentence of no more than three years and a maximum fine of $10,000. You could receive enhanced penalties in the following situations:

  • You had more than one kilo of methamphetamines
  • You committed the offense in a drug treatment facility
  • You used a minor’s help to sell meth, or you sold meth to a minor

If prosecutors prove the above aspects, you are looking at an additional 3 to 15 years in prison. The prison terms will be instituted even if the prosecution cannot prove intent to sell.

Offenses Related to Possession Of A Controlled Substance

Three offenses are related to possession of a controlled substance. They are:

  • Possession of a controlled substance for sale
  • Sale and transportation of controlled substances
  • Intoxication of controlled substances

  1. Possession of a Controlled Substance for Sale

Possessing controlled substances for sale is prosecutable under Health and Safety Code 11351. Prosecutors will have to prove specific elements to be true to secure a conviction for the felony offense.

The following elements point to an intent to sell.

  • You had a significant quantity of a controlled substance or narcotic
  • Officers found a scale in your premises or the exact location as the seized controlled substance
  • Police officers retrieved a substantial bundle of cash in small denominations
  • The officers also recovered packaging like baggies or bindles
  • You had several people visiting your place but only staying for a short while

If the DA proves his/her case beyond a reasonable doubt, you will be convicted on felony charges. The judge will impose a jail sentence of 2, 3, or 4 years and/or a fine totaling $20,000.

  1. Sale and Transportation of Controlled Substances

What amounts to the sale and transportation of a controlled substance?

Actions including furnishing, administering, importing, ferrying, and selling controlled substances are offenses enough to convince the DA to pursue felony charges under HS 11352. In the charges, the prosecution is expected to prove:

  • You had a substance listed in the Controlled Substances Act
  • You exchanged or offered to exchange the substance for money, administered it to another, gave it away
  • You imported or offered to exchange the substance into California
  • You were aware of the drug’s presence
  • You knew the substance was controlled
  • You had a usable amount

A conviction under HS 11352 results in hefty penalties. You could face:

  • 3, 4, or 5 years in jail under the
  • 3, 6, or 9 years in jail if established you transported controlled substances for sale across more than two counties in California
  • A fine of up to $20,000

A judge could issue felony probation terms or a suspended sentence instead of jail terms. However, these alternatives are available subject to eligibility. You are ineligible if any of the following is true for your case:

  • You have a prior conviction for offering or selling substances containing heroin amounting to 14.25 grams or more.
  • You have been convicted for offering or selling any amount of heroin and possession of a controlled substance for sale.
  • You have a prior conviction for offering or selling cocaine, methamphetamines, or cocaine-based substances. You also were convicted for offering to sell, sell, or possess any drug.

It is equally important to note that your jail sentence could be enhanced in exceptional circumstances, as detailed below.

  1. Your jail sentence could be increased one year if you trafficked cocaine, a cocaine-based substance, or heroin in a drug treatment center or a homeless shelter or within 1000 feet of the facility.
  1. Using an individual below 18 years to sell, give away, transport, or prepare to sell a controlled substance results in enhanced penalties. The same is true if you sell, give away, furnish controlled substances to a minor. For these actions, the judge will impose an additional 3, 6, or 9 years to your sentence to be served in prison.

Selling to a minor at least four years your junior results in an additional 1, 2, or 3 years to your sentence to be served in prison.

If the drug is cocaine, heroin, or a cocaine-based substance and the activity took place within 1,000 feet of a school, a location frequented by minors, or a place of worship, you could receive an additional 1, or 2 years to your sentence, to be served in prison.

  1. Selling specific quantities result in additional penalties, as detailed below.
  • Three years for narcotics exceeding 1 Kilogram
  • Five years for drugs exceeding 4 Kilograms
  • Ten years for narcotics exceeding 10 Kilograms
  • 15 years for substances exceeding 20 Kilograms
  • 20 years for drugs exceeding 40 Kilograms
  • 25 years for drugs exceeding 80 Kilograms

A further penalty of $1,000,000 to $8,000,000 will be imposed.

Talk to a Santa Ana Drug Crime Defense Attorney Near Me

Criminal defense attorneys who specialize in drug crimes bring on board their experience and skills in fighting off drug charges. While possession of controlled substances is mistaken for a simple crime, the stakes are high, evidenced by the penalties above. You should not risk a conviction. Enlist the services of reputable attorneys to ensure the best legal outcome. At the California Criminal Lawyer Group, we are ready to offer assistance. Get in touch with our Santa Ana team today at 714-844-4151 for a free case evaluation.