What is possession of a controlled substance?
Illegal possession of controlled substances is a serious criminal charge that can have long-lasting impacts on an individual’s life. The severity of the offense often depends on the quantity of drug involved and whether it indicates personal use (simple possession) or distribution (possession with intent).
Most drug possession are misdeameanor criminal charges. The state of California is more interested in rehabilitation than punishing you. It’s within the state’s interest to get you services that would benefit you if you have a drug problem. In most instances, the a skilled criminal defense attorney will be able to persuade the prosecutor to work with an offender getting a person into some kind of drug diversion program.
Constructive Possession and Actual Possession
It’s important to distinguish between constructive and actual possession in drug cases. Actual possession occurs when an individual physically has the drug, such as carrying it in their pocket.
Constructive possession, however, refers to situations where a person has control over the place where the drugs are found, like a storage unit or glove box, even if they are not physically holding the drugs. This distinction can significantly affect the legal defense in a drug possession charge.
However, if you are found with a substantial amount of drugs then the stakes will be higher as you will be looking at a felony offense and not just simple possession. Having more than just usable amounts would indicate that a person is in holding onto the substance for sale or transportation. .
The prosecution would argue you are in the business of transportation of controlled substances and supplying drug dealers and you should be be charged with a felony. A felony conviction for drug possession charge is treated just as bad as other violent offenses and carries with it consequences for immigration purposes.
Joint Possession and Issues of Physical Control
Joint possession occurs when multiple individuals have control over the drugs, which can complicate a drug possession charge. For example, if drugs are found in a shared storage unit, establishing who had physical control or knowledge of the substance for sale becomes a critical aspect of the defense strategy.
Is possession of drugs a felony in California?
Felony Conviction, Felony Offense, and Their Consequences
A drug possession charge can be a felony offense depending on the quantity of the drug and whether it’s a case of simple possession or possession with intent to distribute. A felony conviction can lead to severe consequences, including a lengthy jail term, a criminal record, and challenges in finding employment or housing post-conviction. In cases of non-violent drug possession offense, a criminal defense attorney may argue for alternative sentencing like a drug diversion program or probation.
The consequence of the offense will vary depending on a number of factors. Some of these factors are the amount of the controlled substance, the class of the substance, whether there have been previous offenses and the county you are in.
The circumstance of how you got caught will also dictate how you will be charged. For example, whether you had only enough for a night out or whether you were holding on to 60 pills of Ecstasy.
Possession of sales is a popular charge by law enforcement because of proposition 47. Law enforcement has not appreciated proposition 47 and as a result has started charging situations that would have been just possession as sales cases. For example, a person with an 8 ball would be charged normally be arrested and charged as a possession case, however it is now charged as a sales case. This has resulted in bail and other complications for people who are accused of sales. It has increased the jail population and made it difficult for people to bail out and fight their cases.
The Costco Buyer is at Risk of Being a Drug Dealer. People who buy in bulk are in danger. They get caught up in this mess because they are looked at as distributors. The prosecutors will say based on the amount of drugs, there is no other explanation than distribution. In addition they will bring in an expert to say that the fact of having xxx amount of drugs is consistent with being a dealer.
For example, a person may want to buy more drugs such as a few balls or an ounce of meth for personal consumption. In addition to this as a diligent buy and investment on their dollar they have decided to bring a scale with them, you can see where this is going.
| Facts | Charge | Level |
| 60 pills of ecstasy at a club | Distribution | Felony |
| 60 pills of ecstasy at a home | Personal | Misdeameanor |
| An eightball of Meth with a pipe | Personal | Misdeameanor |
| An eightball of Meth with a scale | Distribution | Felony |
H&S 11350 applies to all drugs.
“H&S 11350 applies to anyone who has a narcotic drug classified as a controlled substance listed in Section 11054 (b) or (c), or Paragraph (f)1, Paragraph(f) Section (14), (15), or (20); or Section 11055 (b) or (c); or Section 11056(h), or any controlled substance that is a narcotic drug in Schedule III, IV, or V of the Health and Safety Code without a prescription from a doctor, dentist, podiatrist (foot doctor), or veterinarian who is licensed to practice in California can be punished by confinement in the state prison.”
Can you be prosecuted for possession of prescription drugs not prescribed to you?
Yes It is illegal to have possession of prescription drugs that do not belong to you. If you are caught with prescription drugs (xanax) you are held to the same standard as someone who got with illicit drugs.
What are the Punishments for a Possession of a Controlled Substance Charge?
The punishments statute for possession of unlawful possession controlled substance can result in jail time. People in possession of a controlled substance can be punished up to a year in state prison or up to a year in the county jail. A judge may also impose a fine of $70.00, based on the defendant’s ability to pay.
If a deal can’t be worked out for some kind of diversion or dismissal then it will be Probation. A judge may impose a fine of $1,000 or community service, and for a second offense a fine of $2,000 Conditions of probation will include a prohibition of any kind of illegal drug along with random drug testing.
Fines for a possession of a controlled substance misdemeanor.
In some cases, particularly with misdemeanor crimes, a judge might sentence an individual to community service or misdemeanor probation instead of jail time. This is especially common in simple possession cases or subsequent offenses where the individual shows a willingness to rehabilitate.
If the defendant cannot pay, the judge may order the defendant to do all community service instead of paying the minimum fines (California Health and Safety Code Sections 11054, 11055, and 11056 are included in a separate document, and they have the lists of controlled substances referred to above).However, unlike DUI cases, the fines in drug cases are not substantial and will not present a problem
Fighting it as unreasonable search and seizure
Fighting it on the Procedural Grounds The procedural in an H&S 11350 case involves scrutinizing the police encounter . A police encounter must stay within the limits of the constitution . The police must do their work within the limits of the constitution. The courts have drawn several lines. The police must not cross these lines. These lines mean that a police encounter must comply with the spirit of freeing people from:
- Respecting a person’s right to be free from unreasonable search and seizure.
- respecting a person’s right against self-incrimination and a person’s ability to remain silent
- respecting a person’s right to counsel
These are otherwise known as the 4th, 5th, and 6th amendments.
Within the limits of the constitution, means that there hurdles a police officer must jump thru and properly for the purpose of an arrest on an H&S 11350 case. For example, an officer must clear the 4th amendment hurdle first. The 4th amendment is a prohibition from unreasonable search and seizure. How much intrusion to a person and whether or not that the intrusion is justified has been commented on by the courts. Failure of the officer to comply with these standards will result in evidence not being admissible. If this happens then the case will be dismissed.
Search issues come into play in a variety of situation. Some examples of an illegal search that raises the eye brow of defense attorneys include searches where they went too far and had no reason like when there is a search into the trunk , when items are moveed around , when officer indicates they see contraband in plain view, or when an officer list 5-6 things for a areason to stop.
For example, 1) An officer may suspect a person has drugs on him or herself because of the way he looks and the person may have drugs on him or her making the officer’s suspicion correct. However, law enforcement will need something more than a hunch to justify a police contact. They can’t just say a person looks nervous.
2) An officer suspects a person has drugs and pulls them over consistent with Possession of a Controlled Substance H&S 11350. However, upon pulling the person over, the officer immediately orders him or her to sit cross leg and put his or her hands behind his or her back then starts questioning the person without reading him or her; rights which results in incriminating statements. This will result a violation of the persons Miranda rights. However, officers are smart and will conduct their investigation in a way that complies with Miranda and try illicit statements prior to a functional arrest. It is up to the court process to uncover the truth.
3) During a Possession of a Controlled Substance H&S 11350 investigation, a police officer will interrogate a person that they strongly suspect was involved in a hit and run. The person has asserted his or her rights to counsel and told the police that he does not want to talk and wants his attorney there. Under these situations, the police must not question the person anymore. Failure to comply with this and more questionings which results in a confession or damning statements will only result in the fruits of it being suppressed and not being able to be used in court.
Search and Seizure – The state must respect your reasonable expectation of privacy.
Police procedures dictates there are many things a police officer must do get to the drugs. Police Officers can’t go off hunches. They must follow the law when it comes to search and seizure. If an officer skips a step, this may result in a violation of your constitutional rights. Because of this a possession of a controlled substance case is very complicated. The timing of when you were pulled over and asked to consent to a search is crucial. A mistake in procedure can mean the difference between a dismissal for a violation of your rights. With body cameras as evidence, this happens even more these days because officer’s reports can be contradicted by the video on their body.
Areas that are protected from unreasonable searches
- Car
- Clothes
- Hotel rooms
H&S 11350 – Possession of Controlled Substance cases are not open and shut cases. They are open to attack on both substantive and procedural grounds.
Other Options for Resolving a Case
Is This a First Time Offense Possession Controlled Substance Offense?
A drug diversion or drug treatment program is an alternative to a jail sentence, especially for first-time or non-violent offenders. These programs focus on rehabilitation rather than punishment and can lead to the dismissal of charges upon successful completion. If this is a first-time drug offense for possession then a clean record or a professional license can be leveraged in exchange for classes and treatment. Thus H&S 11350 cases can result in dismissals via a program. The program is some type of diversion.
Diversion is for people who have gotten mixed up in the wrong crowd. In situations like this it is best to go after a diversion class where our client will agree to do classes and stay out of trouble. After the recovery classes, the prosecution will dismiss the cases.
- Caught with an only usable amount
- Holding on to the item for a friend
- No arrest record
What if You have multiple Repeat Possession Controlled Substance Offense?
However, recovery is a tough road and not everyone can pull this off. Recovery in H&S 11350 cases often involves multiple instances of relapses. This is common among people who use methamphetamine and heavily addictive drugs like heroin.
Even after falling out of programs, it is still possible to use the laws to get additional chances and ultimately dismissal. Recovery is a journey and not just done with one trip. Society is aware of this and the courts will have put together collaboration teams to help people out who are committed to recovery.
Reasonable Doubt and Legal Defense
A criminal defense lawyer plays a crucial role in establishing reasonable doubt regarding the possession of drugs. They might question the law enforcement officer’s conduct during the time of arrest, highlighting any unlawful search or violation of rights, such as searching a glove box without probable cause. The goal is to prove that the prosecution cannot meet the burden of proof required for a conviction.A person being charged with H&S 11350 should consult with his or her attorney about the options that are available.
