Possessing a controlled substance for sale can land you in serious trouble with the law. If you are an immigrant, then the legal consequences of the offense are more significant. You can be deported from the country or become inadmissible.
You can avoid these consequences or reduce their impact by hiring an experienced criminal defense attorney. The role of the attorney will be to investigate the best possible defenses and implement these in your case.
The LA Criminal Defense Law Firm has experience in defending against drug crimes in California. Given the high levels of drug use and trafficking in Los Angeles, we have perfected our craft to ensure that we provide the best defense services possible.
Keep reading to find out more about California’s laws on possession of controlled substances for sale and the legal consequences of breaking these laws. You will also learn the common defenses that you can apply in your case.
Definition of Possession of a Controlled Substance for Sale
The health and safety code 11351 prohibits the possession of certain controlled substances intending to sell. The elements of the offense can help in expanding the legal definition of the offense. These elements include:
- You possessed or purchased a controlled substance
- You knew you possessed a controlled substance
- You knew the substance as a controlled substance
- You had a sufficient quantity to sell
- You possessed the substance intending to sell or purchased it to resell
To understand further the meaning of these elements, let us explore the definition of some specific terms:
- Possession refers to having control over the substance, for example, you have control over something that is in your bag. Possession can also extend to more than one person. For instance, if the controlled substance is in an area accessible to you and your roommate, both of you might be considered to be in possession of the controlled substance.
- When you know the presence and nature of the substance as a controlled substance, then you will be found guilty. You do not need to know the specific type of product, as long as you know, it is a controlled substance.
- You had a sufficient amount to use or sell. The substance can be in any quantity that is usable regardless of its effect on the nervous system in that quantity
- You intended to sell or have another person sell the drugs on your behalf
- A controlled substance refers to chemicals regulated by the US Controlled Substance Act in their manufacture, possession, and use. These controlled substances include cocaine, heroin, LAD, prescription drugs such as Vicodin, Oxycontin, and Codeine.
- You might also hear the court using the term ‘analog of a controlled substance,' which refers to a substance whose chemical structure closely resembles that of a controlled substance and has a similar or greater effect to that of a controlled substance on the central nervous system
Fighting charges of drug possession offers you the chance to restore your freedom and avoid a conviction. Not all cases are eligible for dismissal, especially if the prosecution has a lot of evidence against you.
However, you can still get a favorable settlement, including probation instead of incarceration and a conviction for a misdemeanor instead of a felony if the court agrees to reduce the charge to possession for personal use.
The type of defense your attorney uses will depend on the circumstances of the offense, your criminal history, whether you are a legal resident, and the evidence the prosecution has.
Some of the defenses you can use include:
Unlawful Search and Seizure
The Fourth Amendment and the California Constitution assert your right to be free from unreasonable search and seizure. Such a search is usually in violation of your privacy, and thus, your constitutional rights, especially where you have a reasonable expectation of privacy.
Law enforcement agencies are particularly required to observe this law and conduct lawful searches. These agencies must have a valid search warrant before they can conduct a search or seizure in a place where you reasonably expect privacy. These areas include:
- Your home
- Your electronic devices including mobile phones, computers and storage devices
- Hotel rooms
- Personal property
However, you lack a reasonable expectation of privacy in a property that:
- You have abandoned
- Is inside a stolen vehicle
- Property inside a vehicle in which you are a passenger without any ownership or possession interest
Before the police can search property in which you have a reasonable expectation of privacy, the police must obtain a valid search warrant. The warrant includes details of the area covered by the warrant and the items for which the officer is searching. However, they can search without a warrant if:
- You or another authorized person give consent to the police to search a protected property
- There exists an immediate danger to life and property
- The search is part of a lawful arrest
- The officer has probable cause to believe that the car contains evidence to the crime or contraband
- During a terry stop when the officer thinks you might have weapons in the car
- Your vehicle was lawfully impounded
- You are carrying the electronic device across an international border
- The evidence was in plain view or are obviously incriminating
Your attorney will examine whether the search met the conditions for a lawful search or seizure. If the police failed to follow the required procedure, then the attorney will find grounds to challenge the evidence obtained through that search. Some of the common ways a search can be unlawful include:
- The warrant was defective or invalid due to police misconduct, or the warrant is too general
- The search exceeded the limits of the warrant
Usually, an illegal search and seizure defense does not lead to the automatic dismissal of your case. Instead, the court will exclude all the evidence obtained as a direct or indirect result of the illegal search. However, if this evidence forms the core of the prosecution’s case, the chances of a dismissal or charge reduction increase.
Drugs Were Someone Else’s
The police might also link you to a drug possession offense, even if the drugs are not yours. Such charges are common when the drugs are found in a shared car or a home. The primary suspect, in that case, will be the owner of the home.
For example, if you gave your friend a lift home, but she dropped her drugs in your car, the police could charge you with possession of a controlled substance for sale if the police find the substances.
If the drugs were not yours, your defense attorney would establish your defense by providing proof that:
- The drugs were not in your immediate possession
- You were not aware of the presence of the drugs
- Another person was in access to your property and could have left the drugs there
- You did not know that the substance was a controlled substance
Your attorney will also focus on proving beyond a reasonable doubt that the controlled substance does not belong to you. If the attorney can create sufficient doubt in the prosecution or the jury, then the likelihood of a reduced charge increases.
The Substance is not a Controlled Substance
A controlled substance is one in which both the federal and state government regulate its manufacture, possession, and use. These substances might include illegals and prescription drugs.
These substances are divided into schedules under the federal scheme. These include:
- Schedule I drugs are those not allowed for medical use. They are often unsafe and more likely to cause addiction. These drugs include marijuana, LSD, peyote, ecstasy, and heroin.
- Schedule II are narcotics and stimulants with a high chance of addiction and abuse. They are likely to cause both psychological and physical dependence. The drugs include methamphetamine, opium, morphine, Oxycontin, codeine, and amphetamine.
- Schedule III drugs are those with a lower chance of abuse and dependence. They include Suboxone and Ketamine.
- Schedule IV drugs are those with an even lower potential for abuse including valium, Versed, Xanax and Ativan
- Schedule V drugs have a limited amount of narcotics in them
The possession of these drugs is prohibited in California unless you have a prescription, and the amount you have in your possession matches that of your prescription.
If the substance for which you were arrested does not fall in the controlled substances categories, then you cannot be charged with possession. Your attorney will request a crime lab analysis to establish the chemical composition of the substance. He or she will then call the crime lab analyst as an expert witness to testify on your behalf.
In most cases, the foundation upon which possession charges are based on the actual substance retrieved from the defendant. Your attorney could request the prosecution to produce the actual drugs that formed the basis of your arrest and charges.
The production of these drugs will depend on proper documentation and storage by the police and other concerned parties. If the drugs were lost, misplaced, or damaged, then the prosecution might be compelled to drop the charges against you.
Planting evidence sometimes happens when some officers are keen on getting an arrest. An officer or another person who engages in planting or altering evidence so that another person can be charged for an offense is guilty under PC 141.
Another person could also introduce such evidence and tip off law enforcement to make you look guilty of the offense.
If your attorney can prove that the drugs were introduced at the scene to frame you, then he or she can file a motion to suppress that evidence, which will often free you from the charges.
Entrapment is a common problem in drug busts where a law enforcement officer goes too far, therefore encouraging the offender to commit a crime. Some of the common tactics used during entrapment include:
While the law does not prohibit an undercover cop from providing the opportunity to commit a crime, it does prohibit using overbearing tactics to compel the defendant to break the law. The officers can also tell lies to provide the opportunity to commit a crime. To understand entrapment better, consider the following examples:
- Barry is an undercover cop. He approaches John and offers to buy some drugs. John refuses for the first time, but the officer offers a large sum of money. John agrees to sell the drugs, and Barry arrests him.
- An undercover cop finds a sex worker and asks her to sell her some heroin. The woman refuses several times. The officer keeps returning for two weeks until the woman agrees to sell her some drugs.
In the first scenario, Barry does not entrap John into selling him some drugs. However, the woman in the second example might have given in due to the constant badgering to sell drugs to the officer, thus amounting to entrapment. The woman can, therefore, use the defense of entrapment to fight possession charges.
To win using the entrapment defense, you need to prove by a preponderance of the evidence that the officer did entrap you. This means that you have to prove that the conduct of the law enforcement officer, more likely than not, leads you to commit the offense.
Penalties and Sentencing
Possession of a controlled substance for sale is a felony in California. The penalties for the offense include:
- Probation and a maximum of one year in county jail
- A state prison sentence of two, three or four years
- A fine not exceeding $20,000
The penalties will also increase with every intended sale that the prosecution can prove.
A conviction for possession of a controlled substance for sale may have negative immigration consequences for legal residents or people who wish to become legal residents of the US.
The immigration consequences of the conviction include:
- Mandatory deportation
- Optional deportation
- Inadmissibility into the US
Once you are deported or are marked as objectionable, you cannot legally return to the US, become a US citizen, or become a lawful permanent resident. Some of the drugs that usually lead to negative immigration consequences include heroin, cocaine, methamphetamine, Vicodin, and sleeping pills.
Another consequence of a felony conviction is the loss of your gun rights. You will be unable to acquire or own a firearm in California.
Drug diversion includes programs designed to keep low-level drug offenders out of jail. These programs help the offenders deal with their drug problems so that they can contribute positively to society. These programs can also reduce the risk of repeat offenses.
The programs include:
- Pretrial diversion
- Prop 36
- California drug court
- LA drug court
Pretrial diversion (PC 1000) refers to a drug treatment program to which you enroll before the commencement of the criminal charges and after the arraignment. The program usually lasts between 12 and 18 months, depending on your circumstances.
Pretrial diversion involves drug treatment, rehabilitation, and counseling. The court will dismiss your charges once you successfully complete the program.
The court will monitor you throughout the program through the probation officer and the administrators of the program. If you do not benefit from the program or do not complete it, the court will terminate the program and resume the criminal proceedings.
Enrolling in a pretrial diversion program can keep you out of jail and prevent your removal or deportation if you are a legal resident.
Proposition 36 is another drug diversion program that allows you to go through a treatment program instead of jail or prison. The diversion program is available for first and second-time offenders who are charged or convicted with non-violent drug crimes.
You can also enroll in a prop 36 program if you were charged for the drug offense while on parole. The difference between prop 36 and PC 1000 pretrial drug diversion is that the latter allows you to enroll even if you are convicted for the drug-related offense.
You will, however, have to meet the eligibility requirements, which include:
- Pleading guilty or not guilty
- You must waive your rights to a speedy trial, preliminary hearing and a jury trial
- You must have been convicted for the offense during a jury trial
- You must be on parole
The court can also terminate the program if you are:
- Not benefiting from the treatment
- Have violated some of the terms and conditions of the treatment program
- You repeatedly violate the rules of the program
- You refuse to participate in the program or ask to be removed
The successful completion of Prop 36 program will lead to the dismissal of your charges or conviction. However, you must file a petition with the court, after which the judge will determine whether to order a dismissal.
If a public defender represents you, you can qualify for a California drug court. California drug court is similar to pretrial diversion under PC 1000 since it allows you to have charges of a non-violent drug crime dismissed. The court uses several approaches, as follows:
- A pre-plea program in which you participate without having to enter a guilty plea to the charges
- A post-plea program where you must enter a guilty plea before you can start treatment
- The post-adjudication program for repeat drug offenders in which the defendant joins upon a conviction for the drug offense
- Civil program model which allows couples going through child custody proceedings, and are charged with a drug offense to get the treatment they need if they want to get custody of their children
The court will determine the model of treatment to direct you into depending on your criminal history. If you do not have a criminal history but have a history of drug abuse, you will go through the pre-plea program. However, if you have a criminal record, you might have to go through the post-plea treatment program.
Regardless of the model of the program, the court will dismiss the charges soon after you complete the program successfully. The program lasts 36 months.
The Los Angeles County Drug Court is a program that offers treatment to non-violent drug offenders who have a chronic substance abuse disorder. The program is a collaboration between prosecutors, probation officers, judicial officers, community-based treatment providers, and defense lawyers.
These stakeholders participate in every stage of the treatment program evaluating its success, the progress of the defendant, and any other help the defendant might need to get back on track.
The goal of the program is to reduce drug abuse, reduce overcrowding by redirecting non-violent drug offenders, and save the criminal justice system money.
The program has high success rates and is one of the best in the country. It helps reduce up to 70% of repeat offenses within five years after the defendant completes the program. The program digs a bit deeper into the motivation of the offender in committing the drug offense.
Those who possess drugs to support their drug addiction will often benefit from the program even if they might be excluded from other diversion programs.
Whether you take a plea to join the program will depend on the nature of the current offense and your criminal history. As a first-time offender charged with simple possession, you might not have to take a guilty plea. But, if you have a prior criminal record, you may have to enter a guilty plea.
Find a Drug Crime Defense Attorney Near Me
An arrest, conviction, and incarceration for the possession of a controlled substance for sale can have a long-lasting negative effect on your life. You will find it hard to find jobs and educational opportunities.
In addition, you might commit a similar crime in the future, especially if you have a drug problem. However, with the help of an attorney, you can fight the charges you are fighting or request entry into a treatment program to deal with the drug problem.
The LA Criminal Defense Law Firm understands the complexity of drug crimes and the underlying factors that could influence criminal behavior. We, therefore, evaluate the case, the possible defenses, and ways you can have your charges dismissed through diversion. If you are in a similar situation, call us today at 310-935-1675.