Drug crimes are types of offenses that involve the possession of illegal drugs. This might lead to severe penalties if one is found guilty of such crimes. The kind of sentences that one gets depends on a couple of factors, such as the type of drugs in possession, criminal history, and the intention of using the drugs. It is recommended to seek professional legal intervention to uphold your rights and get a fair trial. We at The LA Criminal Defense Law Firm are ready to offer excellent services to our clients. In addition, it is reasonable to know about different aspects related to your case.
Possession of a Controlled Substances According To California Laws
The Health and safety code 11250HS defines whats makes a crime for a person to possess certain controlled drugs in California. Anyone found in possession of narcotic drugs without any valid prescription can face a charge with drug possession and face imprisonment according to the California laws. For a prosecutor to successfully prosecute a suspect, he or she must prove the following aspects:
- The defendant owned the controlled substance
- The accused did not have any prescription for the content that he or she was possessing
- The defendant was aware of the presence of the substance
- The defendant was aware of the substance nature as being controlled
- The controlled substance was enough for use
For a person to possess a substance, he or she must have control over it. You can either possess it directly or indirectly through another person. As long as there is proof that you own the substance, it counts to be an offense, although you are not directly involved in the possession.
For instance, you possess the substance if it is in your:
- storage room
Note that anyone who is in the process of buying the controlled substance does not mean that the person has control over it. Besides that, the substance can be under the possession of more than two people at the same time.
For a defendant to be guilty of possessing a controlled substance, he or she must have an understanding of:
- The presence of a controlled substance
- The substance is, in fact, a controlled substance
Note that the prosecutor only needs to prove that the accused owned a controlled substance, although he or she did not know it was controlled. Elaborately, the prosecutor should only prove that the accused knew that the substance in possession was a form of a drug.
To consider that a particular substance was a usable amount, one has to prove that it was enough to use as a controlled substance. In that case, traces and debris are disqualified from being usable amounts but can be, if it is enough to intoxicate the user.
Possession of an Analog of a Controlled Substance
California Health and Safety Code 11357 HS also consider analog of a controlled substance as part of the controlled substance. The controlled substance should:
- Have a chemical structure that is close to the structure of a controlled substance
- Has a similar or more significant effect on the central nervous system just like the controlled substances
List of Controlled Substances
The US Controlled Substance Act categorizes drugs as controlled substances according to the potential for abuse, safety level, and medical uses. However, there are a couple of drugs such as Marijuana that have been criticized under this law. All the same, here is a list of controlled medications that makes it a crime to possess based on the safety code 11350 HS.
- Schedule 1: Includes drugs that do not have any medical purpose but has a high potential for abuse. It includes opiates(Opium derivatives, Cocaine, Cocaine base, Cannabis )
- Schedule 2: Includes drugs that are accepted for medical use but have high chances for abuse. Examples are Morphine, Oxycontin, Percocet and Fentanyl
- Schedule 3: Includes drugs that are acceptable for medical use but have higher potential for abuse and are safer compared with those in Schedule 1 and 2. Examples are appetite suppressants, steroids, and antidepressants.
- Schedule 4 and 5: Drugs that have a low potential for abuse compared with other schedule drugs. Examples are Xanax, Valium, Ambien, and prescription cough medicine.
Penalties for Possession of a Controlled Substance
The proposition 47 considers the possession of any drug under the Schedule as a misdemeanor crime. This kind of crime is punishable by imprisonment for up to a year or a fine, reaching up to a maximum of $1,000. However, not every offender qualifies for the misdemeanor crime.
The proposition excludes those that have a past conviction for violent crimes such as murder. Therefore, anyone excluded from the crime can face a felony or misdemeanor based on the type of drug and amount in possession. For a felony charge, the offender can face imprisonment for up to 3 or more years.
The offender does not only face imprisonment but risks difficulty in different areas such as:
- Job Searches: it can be challenging to find a job when under this sort of conviction. You might require to undergo a background check, which can end up to be a conviction. Also, it can be hard to get a security clearance when intending to do a government job.
- Renting an apartment: Your target landlord might fail to offer you an opportunity to rent a house if he or she learns about your convictions.
- College Financial aid: A drug conviction might bur you from receiving any financial assistance to cater to your college or university education. If you are a student, the sentence might bur you from graduating
- Custody cases: when faced with a case that requires custody over your children, the judge might bur you from getting custody if you have ever faced this kind of charges
Possible Consequences for Immigrants
Section 802 of title 21 suggests that any alien person living within the US, charged with the involvement of controlled substance possession, or more than 30 grams of Marijuana should be deported. For drug addicts and abusers, one becomes eligible for deportation even without a conviction.
The charges might turn out to be aggravated felony related to immigration purposes only. For an aggravated felony, the offender must commit an offense that falls within the predetermined category of crimes that includes both misdemeanor and felony. This can bar one from any form of an immigration benefit. Therefore, if your crime automatically becomes an aggravated offense, it will most likely subject you to the removal of your proceedings from an immigration judge.
Potential Consequences for Possession of Marijuana
Although California is one of the states that have legalized the use of Marijuana for medical purposes, it still has strict regulations against its usage and possession. Therefore, any unlawful possession of Marijuana becomes punishable based on the following:
- Possession of concentrated Cannabis is punishable by imprisonment of up to one year, a fine that amounts to $500, or both.
- Possession of less than 28.5 grams of Marijuana can lead to a punishment that does not exceed $ 100
- Possession of more than 28.5 grams of Marijuana, besides concentrated Cannabis, can lead to imprisonment of up to 6 months, a fine of a maximum of $ 500 or both.
- Anyone under the age of 18 years possessing less than 28.5 grams of Marijuana besides Cannabis on school grounds commits a misdemeanor. This offense is punishable by ten days incarceration, $500 fine, or both.
All the regulations related to the possession of Marijuana are highlighted in the Health and Safety Code 11357.
Potential Consequences on The Right of Gun Ownership
A conviction related to possession of a controlled substance can have an impact on the right to own a gun. If one gets convicted with a felony, he or she faces prohibition from acquiring or possessing a firearm, according to California law.
Drug Diversion Program in California
The main reason behind Proposition 47 was to support treatment other than imprisonment when convicted with a drug crime. The court might allow you to enter a diversion program if you face a misdemeanor offense.
To enter a drug diversion program, you must plead guilty of the charges and have the sentence delayed until you complete the treatment program. Once you complete the program and meet other requirements, your case gets dismissed. However, you still have to disclose your drug-related charges when seeking an apartment or when applying for a job.
Defense for Controlled Substance Possession
The state has the burden of proving that you are guilty of a crime before convicting you. At the same time, you have the responsibility of building a strong defense to justify that you are innocent of the charges provided against you. In that case, you need to have a relevant defense for charges against your allegation and have a reliable attorney to your aid. Here are several defenses that you can use.
Claim That You Possessed Prescribed Drugs
As provided the Health and Safety code section 11350, it is a legitimate defense for an alleged person when the substance in possession was a prescription. For that reason, if you owned a particular controlled substance such as Codeine, it was not an unlawful possession if it was a doctor's prescription. It can also be a prescription from other licensed medical practitioners such as a veterinarian, podiatrist, and dentist.
Therefore, under the law, you can raise a reasonable doubt over the illegal possession of the drug if it was a valid prescription.
Claim That You Did Not Possess The Controlled Substance
The Safety Code 11350 HS considers it a crime if the person possessing the controlled offense was in complete possession of it. This means there should be valid proof that you owned the substance even though it was not present in the moment. Also, you need to prove that the possession was not constructive, which means that the drugs were in a different location, but you had control over them. If you can establish such elements, you will have a reasonable defense based on the essence of this law.
You Were Not Aware of The Presence of a Controlled Substance/It Was a Controlled Substance
One of the elements that a prosecutor should prove is your knowledge about the controlled substance. Therefore, you must know about the nature of the content as a controlled substance and knew about its presence. For that reason, knowledge is a critical aspect of building your defense.
So, if you bought a product from a chain store believing in that time that it was, in fact, the intended product, but later on turned out to be a controlled substance ( without your knowledge ), then this stands to be a valid defense for your case.
Claim That a Law Enforcement Official Entrapped You Into Possession
This kind of defense is quite useful if you can conclusively prove that the possession was indeed an entrapment from a police officer. However, you should show that you did not have a desire to go ahead with the crime despite the inducement from the law enforcement official.
Claim That There is No Sufficient Evidence Against You
Your attorney can show that there is no sufficient or substantial evidence against your allegation as provided by the Safety Code 11350 HS. You can achieve this if you prove that the prosecutor does not meet all the elements of the crime that can build a sufficient case against you.
Claim That The Authorities Conducted an Unlawful Search and Seizure
The Fourth Amendment claim that people have the right from any unlawful search and seizure by any member of the law enforcement. Therefore, if the arresting officer collected the evidence presented against you unlawfully, then you might get excluded from the criminal case. It means that some of the charges against you might get excluded or completely dismissed.
Eligibilities for Possession of a Controlled Substance Crimes
The HS 11350 might be or not be eligible for different programs under the California laws. Some of these programs include:
- A person who is suitable for a deferred entry program according to the Penal Code 1000 sentences.
- A person who is eligible for a drug diversion program
- A person who has committed a strikeable offense
- A person who has registered as a drug offender
Proposition 36 provided that if a convicted person had a nonviolent drug possession offense, one usually qualifies for a court suspension over the imposition of the sentence and granted probation. However, the alleged person must complete a court-approved drug treatment as a condition of the probation.
Statute of Limitations for Controlled Substance Possession
A statute of limitations is a legal deadline that the prosecutor can take to file a case against you. If the prosecutor fails to honor the time limit, there are chances of dismissal of your case by the judge. Each type of offense has a time limit which the prosecutor must follow before prosecuting you.
In California, possessing a controlled substance is a misdemeanor offense and can typically sentence you to imprisonment. For a crime that carries potential imprisonment, the California laws consider a statute of limitations of 3 years. Note that this does not mean that the charges and trial must complete within the three years of the offense. It merely provides a timeline that the prosecutor must observe to file the charges.
The statute applies as long as you are within California. However, if you leave the state, the charges are tolled or paused until you reenter the state. For such circumstances, the statute of limitations extends by three years, amounting to a total of 6 years.
How The Statute of Limitations Work in Drug Crimes
It is possible to have enough evidence against a drug possession charge if it can wait for three years. Therefore, the arresting officer usually files the charges immediately as tests continue to confirm whether the alleged substance was illegal or not.
A drug crime is a continuous crime, meaning that you are continually committing the crime as long as you possess the drugs. For instance, if you put the drugs in a locker for three years, this does not allow the statute from being effective since you are still in possession throughout the entire period. For that reason, the prosecutor can file charges against you at any time as long as you possess the substance.
Also, there are few situations where the police can wait before filing the charges during a large-scale investigation of a case built against an extensive trafficking network. The police might have subtle evidence to build any valid case against you at the start of the case leading to a hold-off on the charges. The police officers can also wait to build a stronger case against the trafficking or distribution charges resulting in a halt of the charges. Therefore, the time limit still counts until the police officer officially completes the investigation.
For a person under investigation for drug charges, the police might have gathered enough evidence to file a charge against you.
Related Crimes for Controlled Substance Possession
There are different crimes related to possession of a controlled substance. Each of these offenses carries penalties that may or may not be similar to possessing controlled substances. The related crimes are:
Possession or Buying a Controlled Substance For Sale
California Health And Safety Code 11351 considers drug trafficking as a trade for dealing with illicit drugs for sale or exchange with other medications. The possession of a narcotic drug for sale is a felony and can lead to imprisonment.
A prosecutor must prove a couple of things to successfully establish that you are guilty under Health and Safety Code 11351. Some of the elements that the prosecutor should prove are:
- That you possessed the unlawful substance
- You knew about its presence
- You knew the content in possession was controlled
- You owned it intending to sell it
- The drug was enough for use
Sale or Transportation of Controlled Substance
California Laws can convict anyone who intended to transport controlled substances from one place to the other despite how short the distance might be. Transportation can be by any form of transportation such as bicycles, trains, personal vehicles, and on foot. The prosecutor does not have to prove your intention to sell or distribute the substance to convict you.
However, the prosecutor must establish the following elements to find you guilty of the crimes successfully:
- You sold, administered, furnished, imported or gave away into a California controlled substance
- You knew about its presence
- You knew about its nature as a controlled substance
- It was a usable amount
Under The Influence of a Controlled Substance
Under Health And Safety Code 11550 HS, it is a crime to be under the influence of a narcotic drug. It does not necessarily have to be that you possessed the drug, but being under the influence makes one eligible for the conviction.
Cultivation of Marijuana
Under the Health And Safety code 11358 HS, it is illegal to use, plant, cultivate unlawfully, or process Marijuana, whether it is medicinal or for adult use. The section only permits Marijuana cultivation to those with permits to do so.
For a prosecutor to successfully charge you with the crime, he or she should prove that:
- You were planting Marijuana
- You were aware that it was Marijuana
This section considers the cultivation of Cannabis to be a misdemeanor. It only criminalizes the cultivation of the plant as well as its part.
Also, the knowledge about the substance in possession was Marijuana, and you knew it was a controlled substance that provides reasonable evidence of building a case against you.
It can be tough to deal with a controlled substance possession charge. That’s why you need a professional attorney to help you handle your case. It is reasonable to find a reliable attorney who can help you go through your case and handle it accordingly. Failing to do so, you can end up spending a lot of money on your legal representation and end up failing to achieve your expectations. We at LA Criminal Defense Law Firm are committed to providing excellent services to our clients. Reach out to us at 310-935-1675 and talk to one of our attorneys today.