Drug Offenses

Health & Safety Code §11350(a) – Possession of a Controlled Substance in California

Controlled drug possession is a misdemeanor under California Health and Safety Code §11350(a). The US Controlled Substances Act defines controlled substances as unlawful and authorized prescription medications.

The maximum punishment is one year in county prison and a $1,000 fine. Most California drug possession charges are dropped after completing a

PC 1000 drug diversion program, or
Drug court.

What is possession of a controlled substance?

The general definition of “possession of a controlled substance” is that you have or control a drug or narcotic that is against the law at the state or federal level and for which you do not have a valid prescription. This is what is meant by “in possession of a controlled substance.” To convict you of this offense, the prosecution must prove five “elements of the crime.” The following 5 elements make up a possession charge:

You were in possession of a controlled drug.
You lacked a prescription for it.
You were aware of its existence.
You understood that it was a restricted substance.
You had a sufficient quantity of it.

A drug or chemical is considered a “controlled substance” if it is made, kept, or used in a way that is subject to government regulation under the Controlled Substances Act of the United States. Some controlled substances covered by this law include such illegal drugs as:

Cocaine
Heroin
LSD
Peyote

The law also applies to prescription drugs not lawfully prescribed to you, such as:

Hydrocodone (Vicodin)
Oxycodone (Oxycontin)
Ketamine
Valium
Xanax

Possession

If you have control over a material, you are in possession of it. You may do this directly or indirectly through someone else. Something may be possessed without really being held or touched. So, for example, you are in constructive possession of a drug if it is in your:

Bag (even though it is in a locker or car trunk).
Storage unit, or

Knowledge

To be guilty under HS §11350, you must have knowledge of both:

The presence of the controlled substance.
The fact that the substance is indeed a controlled substance.

Usable amount

A “usable amount” is an amount that would be sufficient for you to use as a restricted drug. Drug quantities that are not usable are useless traces (or trash). On the other hand, a useful amount need not be sufficient—in quantity or potency—to make you feel intoxicated.

Analog of a controlled substance

The possession of “restricted drugs” is covered under this law. Possession of an analog of a restricted narcotic is similarly illegal. An analog of a controlled substance either:

Has an effect on the central nervous system that is the same as or worse than that of a banned drug, or
Has a chemical structure that is substantially similar to that of a controlled substance.

Defenses

If you want to fight a possession charge, you may raise a legal defense. Several typical defenses to drug accusations include:

You did not “possess” a drug,
You had a valid prescription for the substance, and/or
You were arrested after an unlawful search and seizure.

Penalties

Most often, simple drug possession is prosecuted as a misdemeanor (as opposed to a felony or an infraction). A conviction of this criminal charge is punishable by:

Imprisonment in county jail for up to 1 year, and/or
A maximum fine of $1,000.

In lieu of jail time, a judge may impose a misdemeanor (or summary probation).

Also, keep in mind that a drug crime conviction can have serious consequences:

Immigration consequences (if applicable), and
Impacts on your gun rights.

You can seek to have a conviction expunged once you complete:

Probation (if imposed), or
Any jail time (if imposed).

Health and Safety Code §11351 HS: Possession for Sale of Narcotics

Possession of a controlled drug with the intent to sell is a crime, according to California Health and Safety Code § 11351 HS. The section covers both commonly prescribed medications like Oxycodone (Oxycontin), Hydrocodone (Vicodin), and Codeine as well as illegal street narcotics like Cocaine, Heroin, and LSD.

What does it mean to possess a controlled substance for sale?

The California Health and Safety Code § 11351 is only one of the regulations that forbids drug possession with the intent to resell. You may be prosecuted under this act if you possess or acquire certain banned narcotics or other narcotic drugs for the purpose of selling them.

According to the “Controlled Substances Act” of the United States, a drug or chemical is considered a “controlled substance” if its production, possession, and use are subject to government regulation. A few examples of common controlled substances that this law regulates are:

Opiates and opiate derivatives,
Cocaine,
Heroin,
Peyote,
Gamma-hydroxybutyric acid (“GHB”), and
Certain hallucinogenic substances.

You are also not permitted to possess or buy certain prescription pharmaceuticals that are being sold under this regulation. These consist of (but are not limited to)

Hydrocodone (“Vicodin”)
Codeine

You must be found guilty of having a controlled drug with the intent to resell it before the prosecution may condemn you.

Possessed or purchased the drug,
Knew you did so,
Knew of the drug’s nature as a controlled substance,
Possessed enough of the drug to use or sell, and
That you either:

a) possessed the drug with the intent to sell it, or
b) purchased the drugs with the intent to resell them.

Let’s take a closer look at some of these terms and conditions in order to gain a better understanding of their legal meanings.

How does a prosecutor prove intent to sell?

Prosecutors tend to charge possession for sale when you have drugs and there are ”indicia of sale” present. This typically includes:

Large quantities of the narcotic or controlled substance
Packaging of the drug in separate baggies or bindles
Scales
Lots of cash, especially in small denominations
Lots of people are coming to your place and staying only a few minutes

California’s penalty for possession for sale

If convicted of violating California Health and Safety Code §11351, you face:

2, 3, or 4 years in county jail and/or
A maximum $20,000 fine.

A competent attorney may also be able to get you probation and a sentence of up to a 1 in county jail. However, unlike simple possession, a conviction under HS §11351 disqualifies you from drug diversion (treatment instead of jail time).

Defenses against HS §11351

The best defense under Health and Safety Code §11351 HS depends on the facts of your case. Common defenses, however, often include:

You did not possess a controlled substance.
The drugs were not yours.
The drugs were for personal use.
You did not know the narcotics were there.
The drugs were found during an illegal search and/or seizure.
The police falsified evidence.