Possessing a controlled substance to sell or distribute is criminalized under California laws. However, you might be surprised to learn that you risk being arrested and charged for this offense even though you had no intention to sell.

If you've been charged with possessing a controlled substance for sale, you should contact a knowledgeable criminal defense lawyer right away. Hiring a lawyer will offer you the best chance of defending yourself against these charges and proving your innocence. Call the California Criminal Lawyer Group today to set up a free initial appointment to speak to one of our representatives in Santa Ana. We'll go over your case with you and discuss the available options for your case.

What Does It Mean to Possess a Controlled Substance with the Intent to Sell?

One of the statutes prohibiting drug possession with the intent to sell or distribute is the California Health and Safety Code 11351. This act makes it illegal to possess or purchase particular controlled substances or any other narcotic to distribute and sell them.

A "controlled substance" is defined as a chemical or drug that is subject to federal regulation under "The Controlled Substances Act" (CSA).

This act regulates several widely known controlled substances. They include:

  • Cocaine
  • Opiates as well as opiate derivatives
  • Peyote
  • Heroin
  • Certain hallucinogens
  • GHB also known as gamma-hydroxybutyric acid)

This list is by no means exhaustive.

This act also makes it illegal to possess or purchase certain prescription drugs to sell them. Examples of these prescription drugs include:

  • Codeine
  • Vicodin (hydrocodone)

However, before the prosecution can prosecute you for possession of a controlled drug with intent to sell, they must first establish that you:

  • Had the drug in your possession or had purchased it
  • You had knowledge that you had the substance in your possession, or had purchased it
  • You had knowledge that the substance was a controlled substance
  • Had the controlled substance in sufficient quantities that could be sold or used, and

You either:

  • Had the substance in your possession for sale, or
  • Bought the substances intending to sell them

Now let us look more closely into these terms to learn more about what they legally mean.

Controlled Substance

The federal government regulates the manufacture, ownership, and use of drugs and chemicals in the country under "The Controlled Substances Act."

Under the Healthy and Safety Code 11351, a drug or chemical is said to be a controlled substance if its use is controlled or prohibited by the United States Controlled Substances Act. Prescription medicines such as opioids and codeine that have been purchased fraudulently are also considered controlled substances.

Possession

Having direct and personal authority over something is considered to possess that item, according to HSC 11351. The substance could be inside your house, car, purse, clothing, or another place over which you have control. Control could be actual, joint, or constructive.

Joint Possession

A scenario in which two or even more people share physical or constructive ownership of the controlled substances is referred to as joint possession. For example, if you intended to sell narcotics seized from a property you share with your friend or partner, it could be regarded as joint possession.

If the narcotics or equipment used in selling drugs were discovered on each of you, the charges could be enhanced to actual possession of the drugs.

Actual Possession

The term "actual possession" refers to having the drug on your immediate person. This might be inside your pockets, body, cavity, or wallet, among other places. Constructive possession

If you do have any sort of access to controlled substances or it is discovered in an area over which you have immediate control (you do not have to own it), you are considered to be in constructive possession of the drug. Circumstantial evidence (this is evidence that does not explicitly show guilt) is generally used to substantiate constructive possession.

Knowledge

The prosecution has to show that you were aware you had the drugs and that you were also aware that the drugs were controlled substances for you to be guilty of possession with intent to sell.

There are two types of knowledge:

  • The knowledge you had the substance in your possession

It is unjust to detain or prosecute someone for possession with intent to sell if he or she was unaware that the substance was in their presence. For example, if you needed to borrow a friend's automobile and police officers discovered drugs inside the glove box, you can not be found liable because you were unaware that the substances had been in the car.

  • The fact that it is a controlled chemical/drug

To be charged with possession with intent to sell, you are not required to recognize the actual name of that drug, the sort of side effects the substance causes, or its chemical composition. The knowledge that the substances are prohibited controlled substances is sufficient to convict you. What's striking is that the court can find that each of these forms of "knowledge" exists just because you had the drug in your possession.

Knowledge could also be established depending on how the defendant acted following the discovery of the drugs. For example, if you toss cocaine-laced balloons out through the window of your car when stopped by law enforcement, it demonstrates that you were aware of your possession of drugs as well as their unlawful nature.

Sufficient Quantities For Use or Sale

The presence of residues and remnants of a controlled substance is insufficient to establish a charge for possession with the intent to sell. To be charged with this crime, the actual amount of the substance must be sufficient for you to sell or distribute it to people who buy it.

The Intention to Sell

Proving whether you had the substances with the deliberate intention of selling them is among the most challenging aspects of the prosecution's claim in a possession with intent to sell allegation.

This does not, nevertheless, mean that you should have the intention of personally selling the drugs. You could still be guilty of this crime if you meant for somebody else to distribute the controlled substances. Selling could mean getting a highly valued item, cash, or certain service in exchange for the substance. The prosecution can also use the following factors to show intent to distribute or sell:

  • Measuring Scales
  • A large number of drugs
  • Large amounts of cash
  • Drug packaging (partitioned into baggies or units)
  • A buyer's registry or a contact list
  • The number of people who come to your house
  • The duration of a visitor's visit
  • Several mobile phones

If the prosecution can demonstrate that you had been in control of the substances but not with the intent of selling them, you could be charged with a far less serious charge of possession as per the HSC 11350.

Possession for Sale Versus Possession for Personal Use

Drug possession charges are based on the intent of the possessor, which could be hard to establish. In the absence of a voluntary admission from the defendant, intent must be established by circumstantial proof.

When attempting to prove possession with intent to sell, for example, police officers and prosecution often depend on expert testimony (a narcotics expert) to testify that the illegal substances were intended to be distributed by the offender in question depending on the common factors below:

  • The drug quantity

If you are found to possess more drugs than a "typical" individual would use, it'll be presumed that you were planning on selling the drugs. However, the flaw in this assumption is that when a regular user has the means to make a huge purchase from their dealer, he or she would usually buy in huge amounts.

  • How the Drug has been packaged

The most incriminating type of evidence in a possession with intent to sell during the trial would be how the drug has been packed. If the substances are wrapped in different balloons, sachets, bundles, or bindles, the authorities will believe that the substances were packaged for commercial purposes rather than individual consumption purposes.

  • The absence or presence of drug paraphernalia

Possessing drug paraphernalia could be classified as a different offense under HSC 11364, which could benefit or destroy your case. Pipes, syringes, as well as any other device used to shoot, consume or, ingest the drugs are considered drug paraphernalia. Because paraphernalia normally denotes use, their presence could bolster the assertion that the narcotics were intended for individual use.

However, if you possessed measurement instruments, measuring scales, or any other equipment required to divide, dilute, or pack the drugs, then the prosecution can allege that you had the substance with the intent to sell.

  • You are under the influence of drugs

If you had been under the effect of drugs when you were arrested, it could establish that the substances were meant for individual use. However, this information is not conclusive because a huge number of drug traffickers are also abusers. Additionally, if you are inebriated because of the controlled substance, you may face extra sanctions under HSC 11550.

Legal Defenses to Charges of Possession of a Controlled Substance with intent to sell

There are a few defenses that a knowledgeable Santa Ana drug crimes defense lawyer could present to defend you against possession of controlled substances with intent to sell charges. Among the most common are:

Unlawful Search or Seizure

A police officer can infringe the search and/or seizure statutes in several ways, such as executing a search without a warrant, searching outside the limits of the legal warrant, or detaining someone without a warrant. If your defense attorney believes you were the victim of an illegal search, he or she would most likely submit a petition to dismiss the evidence as per PC 1538.5. Your charges could be dropped or lessened if this petition is successful.

You Were Not in Possession

You can be acquitted if your defense lawyer can persuade the court and prosecution that you had not possessed the controlled substances. This argument is most commonly used in cases that involve constructive possession.

You had no Intent to Sell the Controlled Substances

You could have possessed the controlled substances, but you might not have had the intention of selling them. You are eligible to receive a dismissal of these charges if your lawyer can demonstrate this to the court. While admitting to having drugs could seem contradictory, mere possession is considered a much lesser serious offense and could enable you to participate in a drug treatment program.

This argument could also be used if you could persuade the court that even if you had the drugs for a short time, you only had them for a short time while attempting to dispose of them.

No Knowledge

Likewise, if the prosecution cannot provide evidence showing that you had been aware of the substance's presence or the drug's nature, you cannot be charged with drug possession with intent to sell. Believing that a drug like cocaine is phencyclidine isn't a valid defense, but assuming that cocaine found in a sachet is sugar could be. When there's no formal evidence of past drug use under the accused's name, no knowledge as a valid defense works well.

When contrasted to a renowned dealer or addict making the same claim, this type of offender can convincingly convince the court that he/she was unaware that the substances were controlled substances.

Penalties For Possession of a Controlled Substance with Intent to Sell

Under HSC 11351, the consequences for possession with intent to sell an illegal substance are harsh. A convicted person could face a term of two, three, or four years in the local jail, and also fines of approximately $20,000 if they are found guilty.

If you're planning to obtain US citizenship or are currently in the country on a residence permit, you need to be aware that a guilty verdict for this offense can result in deportation as well as denial of citizenship. If you have been accused of drug possession with the intent to sell, you should get a lawyer to counsel and represent you before the court. You might also have to consult with an immigration lawyer to understand the impact of a guilty verdict on your immigrant status.

Several other elements exacerbate the situation and/or lead the prosecutors to seek a harsher sentence and penalty. The following factors could aggravate your case:

  • The prosecutors will pursue a 3-year prison term if you had more than 2.24 pounds or 1 kilogram of heroin or cocaine
  • If you have more than 4 kg or 8.81 pounds of heroin or cocaine in your possession, the prosecutors will pursue a ten-year prison term
  • If the quantity of heroin or cocaine found is greater than 20 kilograms, the prosecutors will pursue a fifteen-year jail sentence

You will also not be qualified for a drug treatment program if you've been found guilty of possession to sell a prohibited substance. This program enables offenders to participate in a drug treatment program rather than serving time behind bars.

If you have been accused of possession of controlled substances with intent to sell under HSC 11351, you should contact a lawyer who could have the charges lessened to mere possession, allowing you to undergo the drug treatment program rather than serving jail time.

Related Crimes

Possession of a controlled substance for sale under Health & Safety Code 11351 is related to several other crimes. Some of them feature comparable acts; some are commonly charged alongside HSC 11351, while others might be charged instead of possession with intent to sell.

The following are only a few examples of these related offenses:

Sales and Transportation of Prohibited Substances Under the Health and Safety Code 11352

HSC 11352 criminalizes the sale and the distribution of similar illegal substances prohibited by HSC 11351. HSC 11352 differs from 11351 HS in that 11352 deals with real drug sales (in contrast to possessing the controlled substances to sell the drugs).

If you are found guilty of this offense, you will face the following penalties:

  • A jail term of 3, 4, or 5 years in a local jail (3, 6, or 9 years when you move the drugs past two county boundaries)
  • Additionally, since this is a sales charge instead of a mere possession charge, a drug diversion program isn't a viable option. Unless your lawyer can work out a deal for simple possession charges instead

Possession, Distribution, and Transportation of Methamphetamines Under§ 11377,11378, and 11379 of the HSC

HSC 11350, 11351, as well as 11352, are highly comparable to HSC 11377, which outlines the possession of methamphetamines, HSC 11378 which lays out the possession of methamphetamines for sale, and HSC 11379 (selling or transportation of methamphetamines), with one notable distinction.

The distinction is these rules apply to drugs that are somewhat less "serious."

While methamphetamines, generally called "meth," are among the most commonly penalized substances under these statutes, they also control a range of other substances. These include the following:

  • Phencyclidine
  • Gamma-hydroxybutyrate
  • MDMA (also known as ecstasy, "X", "E", or "XTC")
  • Certain anabolic steroids
  • Ketamine (also known as "special K").

The HSC 11377 is a wobbler, meaning the prosecution can prosecute the crime as a felony or a misdemeanor.

HSC 11378 as well as 11379, on the other hand, are both pursued as felonies that carry sentences ranging from 16 months to 9 years in county jail.

Possession of a Controlled Substance with the Intent to Sell (HSC 11351) - Frequently Asked Questions

The skilled defense counsel of drug crime lawyers at the California Criminal Lawyer Group gives insights to some of the most frequently asked regarding HSC 11351 in California.

  • Can I face charges for possessing an illegal substance to sell if I was unaware of the presence of that drug?

No, the prosecutors have to demonstrate that you were aware of the existence of the substance when it was on your person to charge you with possessing a controlled substance with intent to sell under HSC 11351. You can't be charged with this crime if you were unaware of the presence of the drug.

  • Can I be prosecuted with possession for sale even if I had a controlled substance for individual use?

Sadly, even though you had the drug for your use, you could be convicted for possessing a controlled substance with intent to sell. If there is evidence showing that you possessed the intention of selling, the prosecutor could prosecute you for possessing a controlled substance with the intent to sell.

The prosecutors will evaluate the quantity of the illegal substance discovered in your presence. They will look at whether packing supplies like tiny baggies or other packaging material were present, whether considerable amounts of money were present, and whether or not drug paraphernalia like a needle was discovered when reaching this conclusion.

  • Can I be convicted of possessing a restricted substance for sale when the substance in question is a prescribed drug?

Yes. Possessing a restricted substance with intent to sell might include not just illegal narcotics like cocaine or heroin, but as well as a broad range of legitimate prescription medications. If you have been arrested for possession of prescribed drugs without a legal prescription, you could be charged under HSC § 11351 when the court determines that you planned on selling the drug to someone else.

Find a Drug Crimes Defense Lawyer Near Me

If you are facing possession for sale charges, you should consult with a drug crimes attorney as soon as possible. Because each case is different, defenses that work for another person’s case might not be successful for you. A skilled defense attorney can help to evaluate the evidence and facts of the case to establish which defense strategies and alternatives are best for you. By speaking with one of our Santa Ana defense attorneys, you will gain a better understanding of what you can expect as well as how to build a successful defense to beat the charges. Call the California Criminal Lawyer Group today at 714-844-4151.