California laws are stringent on anyone found in possession of controlled substances. The rules are even stricter for anyone found guilty of possession of controlled substances for sale. If the prosecutor can prove that you had the intention of selling the drugs in your possession, the penalties could be very harsh, including a long time behind bars and hefty penalties.
At Orange County Criminal Lawyer, we know how life-changing a drug-related conviction can be. That is why we are willing to help you through the legal process and ensure that you are justly tried. We not only provide legal guidance but also support in fighting your charges. Get in touch with us if you are Orange County, CA, and we may be able to help with your case.
Legal Definition of Possession of Controlled Substances
California's Health & Safety Laws are intended to protect citizens from the dangers of abusing dangerous substances. Many controlled substances are covered under this law, including heroin, cocaine, and several prescribed drugs. Mere possession of controlled drugs is illegal. If the authorities find out that you intended to sell the drugs, you will be heavily punished under Section 11351 of California Health and Safety Code. This law applies to all controlled substances in the state, whether they fall under the category of illicit drugs or prescribed medicines.
A controlled substance is a drug that is regulated by the state of California. It is either a chemical or drug whose production, the state controls possession, distribution, and use. Most of these drugs are considered illegal in the state, for instance, meth, and cocaine. Painkillers such as morphine are usually prescribed medicines that have also been categorized under controlled substances. The law against possession of controlled substances affects all those substances that have been listed under Section 11350 of California's Health and Safety law.
Controlled substances in the state of California are further placed under five categories, known as schedules. Under each schedule, there are types and quantities of drugs that are not allowed in the state. The schedules include:
Schedule 1: These are cocaine, mescaline, and opiates
Schedule 2: They include narcotics like raw opium and morphine
Schedule 3: Examples of these are phenobarbital and anabolic steroids
Schedule 4: They are mainly prescription drugs like zolpidem and diazepam
Schedule 5: These comprise of other drugs that are considered dangerous but, to a lesser extent, for instance, small doses of codeine.
Some of these drugs are also listed under Federal laws as controlled substances. It means that in addition to facing charges for their possession in California, the offender may also face similar federal charges, a conviction of which will result in additional penalties.
As mentioned above, possession of any of these controlled substances is a grave offense in California. Section 11351 of California's Health & Safety Code is meant to ensure that California residents do not possess and distribute narcotics for all residents’ safety and well-being. Possessing or even buying such drugs to sell or distribute them will result in a conviction. However, before you are convicted of possessing a controlled drug, the prosecutor must prove specific facts. These are the elements of this offense, and they include:
- You purchased or had a controlled substance
- You were aware of the existence of the controlled substance
- You knew the nature of the drug and that it is listed under controlled substances
- You had enough of that substance for use and sell
- You did either of the following:
- You possessed the substance intending to sell or distribute it
- You acquired or purchased the controlled substance intending to resell it
To understand these facts even better, let us look more into the legal meaning of the various words/phrases used in the definition:
Possession of Controlled Substances
California law uses the term 'possession' to mean having control over something. This kind of control could be actual control, joint, or constructive. Being in actual possession or control of something means that the person had the controlled substance in their immediate possession. It is much easier to identify and prove as compared to other types of controls. Having the drug in person may mean that the substance was found in your pockets, briefcase, or a backpack you were carrying at the time of the arrest.
On the other hand, being in constructive control of something means that you had access to the substance, or you had rights of control over it. It is a little bit challenging to prove, though it is possible with some circumstantial evidence. You may not physically possess the substance but may have access to it or control it wherever it may be. For example, if you have a supply of heroin under your seat cushion, you may not be physically in possession of the substance, but have control over it.
Joint possession of a dangerous substance occurs when the drug is under the control of two people or more. If two people were sharing an apartment in the example given above, and both were aware of the existence of the heroin under the seat cushion, they may be guilty of joint possession of the controlled substance. More evidence could be used to prove to the court that two or more people were indeed in joint ownership of a controlled drug.
Knowledge of the Drug’s Existence
For you to be found guilty of possessing a dangerous substance, it means that you were aware of the existence of that drug, as well as the nature of the drug. If by any chance, you were unaware of the drug presence in your backpack, you cannot be found guilty of Section 11351 of California Health & Safety law. Therefore, the prosecutor must prove to the court that you were aware of the drugs in your bag or that there were drugs in your apartment, bedroom, or locker.
If you were using a borrowed vehicle, for instance, there is a chance that you were unaware of the existence of controlled substances if the police search and find the drugs in the vehicle. In other cases, you could have drugs in your house without your knowledge, especially if a friend or relative hid the drugs there without your consent.
You could know the existence of certain controlled drugs but not understand their nature. California law dictates that if you know the nature of those controlled drugs you could be guilty of possession. Also, if you are not aware of the drug's name, its chemical composition, or the effects it produces you cannot get convicted. If you know that it is a regulated substance, you may be guilty of possession of a controlled substance under California laws.
Note that the court may infer knowledge of the existence and nature of the controlled substance. In some cases, you are believed to know the presence and kind of a controlled substance in their possession. In other cases, the court may assume that you had this knowledge based on how you conducted yourself after the substance was discovered in your property.
For example, trying to throw drugs out of your car inconspicuously after the police stop you over could be a clear indication that you were aware of the drug's existence and the nature of the drugs.
Intention to Sell
You could only be found guilty under Section 11351 of the California Health & Safety Code if there is proof that you intended to sell the drugs. It means that the drug must have been enough for use and sale.The law does not need you to admit your intent to the law enforcement officers. If the drug were in minimal amounts, this would not support the plan for sale, so you are not guilty.
Note: Even though the law requires the drug to be in an amount that can be consumed by the buyer/buyers, it doesn’t need to be an adequate amount to affect them.
Proving intent to peddle drugs is always a challenge for most prosecutors. Again, the intention to sell does not necessarily have to be with the person found in possession of the substances. He/she could have intended another person to sell the drug.
If the prosecutor is unable to prove that the offender had the intention to trade the substances, the judge may convict him/her with a lesser offense of possessing a dangerous drug, as under Section 11350 of California's Health and Safety Code.
Section 11351 and 11350 are significantly different offenses, not just in the severity of the penalties a convicted offender will face but also in the possibility of him/her benefitting from a drug-related rehabilitation program. Getting a conviction of drug possession for personal usage may not necessarily land you in prison, but possessing the drugs for sale can.
For that reason, it is good to have a proper defense in place, especially if you do not want to end up behind bars. If it is not possible to have your charges dropped, you could benefit from a charge reduction, in which case the penalties will not be as severe as those you could get after a conviction under Section 11351.
How Prosecutors Distinguish Between Possession for Personal Consumption and Sale
As mentioned above, possession of a dangerous substance for personal usage is also a serious offense, just as possession of the drugs for sale. The only difference is in the severity of the penalties the offender gets after conviction. Note that neither of these offenses requires the person to have sold or transferred the substances. The only proof the court needs from the prosecutor is intent to sell or transfer the drugs. Since it is not easy for prosecutors to prove intent, some factors could help establish your intent. Some of these factors include:
The Amount of the Regulated Substance in Your Possession:
Again, having more drugs in your possession than that are necessary for personal consumption indicates that you intended to sell or transfer them to other users. In this case, an expert witness such as a narcotics officer will be called upon to give their opinion. If he/she can convince the court of your intention, you may be found guilty of ownership of the drugs for sale.
Packing of the Controlled Substance:
How the drugs have been packaged could be a clear indication of intent to sell. No one goes through the trouble of wrapping something unless they are transferring it to other users. While the amount of drugs in your possession is not sufficient proof that you intended to sell the drugs, packaging drugs will be damaging evidence in your case. The drugs could have been packaged in bundles, bindles, balloons, and baggies, or in a way common with drugs for sale.
Presence of Drug Paraphernalia
Having drug paraphernalia is a separate offense and can be charged under Section 11364 of California Health & Safety law. It could also be a way for the prosecutor to prove that you intended to use the drugs found in your possession. In this situation, drug paraphernalia comprises syringes and pipes, and all other instruments that can be used to inject, ingest, or consume the said drug. The presence of drug paraphernalia automatically indicates that someone was using the said drugs. In that case, you may not be found guilty of possession for sale but personal use.
However, if things like measuring instruments, weighing scales, or similar tools used for separating, diluting, or packaging drugs are also found in your possession, it could be used as proof of ownership for sale.
You Were Under The Effects of Drugs
If you are found under the influence of the drugs in your possession, you may not be guilty of ownership of the drugs for sale. In many cases, you are only found guilty of possession for personal consumption. If you have already been found consuming the drugs, the prosecutor's intent to sell may not be easy to prove. However, this does not always hold, especially if you consider that most drug dealers are also consumers. The police will have to find additional evidence if they believe you had the drugs for sale.
In addition to the charges mentioned earlier, if found under the effect of dangerous substances you face extra charges under Section 11550 of California Health & Safety law. If you are convicted of being under the effects of a dangerous substance, there is a chance of getting a jail sentence. If not, the court may send you to a drug diversion program, but only if you are not found guilty of possession of the drugs for sale.
Penalties for Possession of Controlled Substances for Sale in California
The state of California imposes stiff penalties to anyone found guilty of possession of a controlled substance for sale. These penalties include:
- Two (2), three (3), or four (4) years behind bars
- Probation for a maximum of one year
- Fines of not more than $20,000
If there is evidence showing that the defendant intended to sell the dangerous substance to multiple users, the penalties imposed will be connected with every intended sale. It means that the charges could be doubled or tripled, depending on the number of alleged buyers.
Also, a conviction related to the sale of controlled substances could lead to deportation if the defendant is a legal alien or legal immigrant.
Certain factors could aggravate your situation and cause you to face stiffer penalties than those listed above. These factors are referred to as aggravating factors, and may include the following:
- If you are found guilty of buying or processing cocaine base for distribution or sale, the penalties could be stiffer, and may include the following:
- 3, 4, or 5 years behind bars
- A maximum fine of $20,000
- If you are found guilty under Section 11351 of the state’s Health $ Safety laws, and the dangerous substance in question is cocaine, heroin or cocaine base, they face additional penalties, which may include:
- Further three years if the drug in their possession was more than one kilogram
- Other five years if the drug weighed more than four kilograms
- Other ten years if the drugs exceeded ten kilograms
- Additional 15 years if the drug weighed above 20 kilograms
- Twenty years more of the drug exceeded 40 kilograms
- Twenty-five years more of the substance weighed more than 80 kilograms
If you receive any additional penalties you are subject to an extra-fine of a maximum of $8,000,000.
- If you are found guilty of possession for sale and have a previous felony conviction for a drug-related offense in the state, they too may face additional three years to their original term for every felony conviction they get. The other penalty will be served consecutively with the initial sentence.
Possible Legal Defenses against California Charges for Possession of a Controlled Substance for Sale
If you don’t want to face the harsh penalties listed above, it is advisable to engage an experienced criminal lawyer to work on your defense. The good thing is that there are several defense strategies that he/she can use to help your case. Some of these include:
The Search and Seizure was Illegal
The law protects California residents against unlawful search or seizure. For that reason, the police need a search warrant to search any private property. If you believe that the search conducted on your property was illegal, You may use that to render the evidence gathered against you inadmissible in court.
The problem is that most drug-related crimes are unmasked through search and seizure, which is not conducted thoroughly in most cases. It is advisable to speak to your attorney on how the search or seizure was conducted to find a way to weaken the prosecutor’s case.
No Intention to Sell
One of the essential facts of this crime is the sale intent, which the prosecution must prove before the jury. As mentioned earlier, proving intent is always a significant challenge for the prosecutor. Your attorney could take advantage of the challenge to convince the court that the drugs found in your possession were for personal consumption. If that works, you will get a charge reduction and, subsequently, more lenient penalties.
No Proof of Possession
You cannot be found guilty of possession of a dangerous substance if there is no proof that the drugs were actually in your possession. Someone else could have put the drugs where the police found them, and you were unaware of their existence. If your attorney could convince the court of this fact, you might be acquitted of your charges.
Find an Orange County Criminal Lawyer Near Me
Possession of controlled substances for sale is one of gravest offenses in California, which could leave you serving long prison terms and paying hefty penalties. In addition to that, this is a conviction that could affect different aspects of your life, including your career and social status. For that reason, you should find the best help to fight the charges. At Orange County Criminal Lawyer, we offer unmatched legal defense to ensure that our clients are reasonably charged and penalized. Call us at 714-262-4833 if you are in Orange County, and let our experienced criminal attorneys help create a strong defense strategy.
