Drug laws in California have recently changed for the better for defendants. There are more changes to come, especially in the area of marijuana (sales, cultivation and possession) and other controlled substances for personal use. Please call us directly to discuss the current state of drug laws.
Whether you've been charged with a relatively serious drug crime such as drug trafficking or you're facing charges of a simple possession, it's important to completely understand what you're up against. An experienced attorney can fight these charges and increase your chances of avoiding potential jail or prison time.
Unlawful Possession of a Controlled Substance (CA HS §11350)
Federal and state governments label “controlled substances” as drugs that are harmful to a person's health when consumed. As a result, they are classified in schedules and are strictly regulated by the state of California. The dispensing of specific controlled substances, like hydrocodone, for example, is permitted for medical purposes under a physician's prescription, but there are severe restrictions on their use. Ecstasy and cocaine are examples of controlled substances that a doctor cannot prescribe.
The unlawful possession of a controlled substance violates statute 11350 under California's Health Code. This law dictates that if a person is found to have illegally possessed a controlled substance without the consent of lawful authority (without a prescription) he or she may be convicted.
But in order to obtain a conviction in California, several elements must be proven in a court of law. Prosecutors are required to prove that the person accused of this offense was aware of the character or nature of the controlled substance possessed and that the quantity of drugs discovered is deemed a “usable amount.”
One of the most important elements in drug offenses is to prove that a person was aware of both the drug's presence its nature and character as a controlled substance.
For example, you volunteered to drop off a friend at their home and unbeknownst to you, they left a purse with methamphetamine inside it in your vehicle, you did not violate §11350.
Alternatively, if you know the substance is illegal but you aren't sure about what type of substance it is, that is enough evidence to convict you of a possession offense. Mistaking possession of heroin for cocaine, for example, would not exempt a defendant from prosecution.
The California Health and Safety Code vaguely defines a usable amount as enough to smoke, inject, snort, swallow etc., but it does not have to be enough to have an affect on the user. Mere traces or residue of a substance, however, does not qualify as a violation.
There are several ways to actually possess an illegal drug. Identifying which type is applicable in a defendant's case can help hired legal representation raise defenses in a court of law.
Actual possession: The controlled substance was actually discovered on the person, whether it be in their hands or it was in something a person was wearing or carrying. For example, if you were apprehended and the police found unprescribed Valium in your pocket, it would be considered an instance of actual possession.
Joint possession: The illegal drug was possessed was possessed by two or more people.
Constructive possession: The controlled substance may not have been physically in your possession, but you exercised control over where the drug was located. Asking a friend to hold a few grams of cocaine for you until you get off of work is considered an instance of constructive possession.
California Unlawful Possession Penalties
According to California law, the possession of a controlled substance is a misdemeanor. A person may do up to one year in jail for this offense upon conviction.
Possession for Sale (CA HS §11351)
California statutes provide that is it illegal for a person to possess certain controlled substances in order to sell them to another individual or party. Illegal drugs like heroin, LSD, codeine, oxycodone (Oxycontin) and codeine are some of the drugs included in the statute that can not be sold or attempted to be sold by the accused.
It's important to note that proof of a transaction is not required to prosecute a defendant. However, there must be evidence found through an investigation that indicates that the drugs possessed are being sold. The “indicia of sale,” or drug paraphernalia, presented in a drug case include:
- Large amounts of cash
- Empty ziploc bags
- Large amounts of the illegal drug or narcotic
- Scales or other tools to measure drugs
- List of customers
California Penalties for Possession for Sale
The conviction of this offense carries penalties of two, three, or four years in jail and/or a fine that may not exceed $20,000.
Sale/Transporting of Controlled Substances (CA HS § 11352)
Any person who attempts, offers or commissions to do the following actions in relation to controlled substances may be convicted of this offense:
- Give away
- Bring into the state
California Sale/Transporting Penalties
Violators of this law will face felony charges punishable by a range of a year to five years in prison and a fine that totals to $20,000. Additional time in prison and costlier penalties could be sentenced if drugs were sold to a minor or if the defendant has been found guilty of committing other crimes.
Manufacturing of Controlled Substances (CA HS § 11379.6)
California law not only prohibits the unlawful manufacturing of controlled substances, it also prohibits attempts to engage in any activity associated with the process of manufacturing illegal drugs. Therefore, if there is any evidence that you played a role, no matter how minor, in this process, you have violated this code.
Some examples of partaking in the process are managing or supervising those who are manufacturing the substances, or even mixing or preparing these substances yourself.
California Manufacturing Penalties
Depending on the nature of a defendant's case, the violation of this law results in either three, five, or seven years in jail and a fine up to $50,000.
Experienced Drug Crime Attorneys
If you or someone you know has been arrested for a drug offense, it doesn't mean you'll be convicted. Knowledgeable and experienced attorney Harris B. Taback is devoted to fighting for your rights. Call his office at (415) 241-1400 or contact him online for a free consultation.