Possession of Methamphetamine

THE LAW

Under Health and Safety Code section 11377, it is a crime to possess methamphetamine for personal use without a valid prescription from a physician.  In order to convict you of this offense, the prosecutor has to prove the following beyond a reasonable doubt: a) you possessed methamphetamine; b) you knew you possessed methamphetamine; and c) you possessed a usable quantify of methamphetamine.

“Methamphetamine”

Methamphetamines are controlled substances that include drugs such as meth, crystal, crystal meth, speed, blow rock, tine, chalk, ice, glass, or crank. Possession of methamphetamine is unlawful without a valid prescription.  Methamphetamines can be injected, swallowed, or snorted.

“Possession”

Possession can be actual, constructive, or joint.  Possession of methamphetamine under all three of these forms is prohibited.

You have “actual” possession of a drug when you have immediate physical control of it.  The drug is either on your person, or in your purse or briefcase.  Note that actual possession need not mean that the drugs were actually on you when the police conducted the search.  As long as you had actual possession of the drug shortly before the police search, your conduct has met the “possession” element of the code.  For example, the police conduct a traffic stop of Jack’s car. During the investigation, Jack ingests the small amount of methamphetamine that he had kept in his pocket.  The officer witnesses this act.  Jack can be charged with section 11377 because, according to the officer’s testimony, there was no question that Jack possessed the drug prior to ingesting it.

You have “constructive” possession of a drug when the drug was not discovered on your person but at a location over which you had control.  For example, the police raid Jack’s house and discover bags of methamphetamine in his closet.  At the time, Jack was not near his closet; he was at his girlfriend’s house.  Jack is in constructive possession of the bags of methamphetamine because they were found in his closet, a location to which he had access and over which he had control.  Now imagine that the bags of methamphetamine were found in a closet that Jack shared with his son.  Though Jack had access to and control over that closet, the fact that he shares it with his son makes it unclear whether he (Jack) was in possession of the drug.  Thus, access does not and of itself prove possession.

You have “joint” possession of a drug when you and another person or other persons share actual or constructive possession of the drug.  For example, bags of methamphetamine are found in a closet that Jack shares with his brother, Jake.  The evidence shows that both Jack and Jake knew of the drug’s presence in the closet.  Both brothers can be charged with code section 11377 because they had joint possession of the drug.

“Knowledge”

The prosecutor must prove that you were aware of the drug’s presence and of its nature as a drug.  If you had no idea that the drug was in your possession, or if you did not recognize that the material in your possession was methamphetamine, then you cannot be found guilty of code section 11377.  For example, Jack visits his friend Jill.  Jill asks Jack if he could deliver a container of sea salt to Jill’s mother. What Jill is really asking Jack to deliver is a container of crystal meth.  Jack takes the container and places it in his car.  He is stopped for a traffic violation and the container is discovered.  Jack is not guilty of code section 11377 because he believed that the container carried sea salt.

“Quantity”

The prosecutor has to prove that the amount of drug you possessed was sufficient to constitute a “usable” amount—that is, sufficient for the drug to have the effect it ordinarily produces.  If all you had in your possession was residue or minor traces of the drug, you cannot be found guilty of code section 11377.

PENALTIES FOR A CONVICTION UNDER 11377

Possession of meth under code section 11377 is prosecuted as a misdemeanor.  If convicted of this misdemeanor, you face up to one year in county jail and a maximum fine of $1,000.00.

However, if you have suffered a prior conviction for a specified list of serious or violent felonies including murder, rape, sex crimes against a child under the age of 14, and gross vehicular manslaughter while under the influence, a conviction under 11377 will subject you to felony penalties of 16 months or 2 or 3 years in county jail.  If you are convicted of possessing more than one kilogram of methamphetamine, you face an additional 3 to 15 years in state prison.  These additional penalties apply even if the prosecutor cannot prove that you intended to sell the methamphetamine.

DEFENSES

You did not have knowledge that the material in your possession was methamphetamine

If you did not recognize that what you had in your possession was methamphetamine—e.g., in the scenario above, Jack thought what he was carrying was sea salt —then you cannot be found guilty of code section 11377.

You did not have knowledge that you were in possession of methamphetamine

Imagine that you allowed your brother to borrow your car.  Unbeknownst to you, he used the car to pick up some meth from a friend.  He then concealed the bag of meth in the glove compartment of your car.  If your car is searched by law enforcement and the meth is discovered, you are not guilty of 11377 because you had no idea that there was meth placed in your car.

The drug was discovered as a result of illegal search and seizure

The Fourth Amendment protects your right to privacy of your home and vehicle.  Law enforcement have to have either your expressed consent, a legitimate warrant, or justification under a qualified exception to search your home and vehicle.  If all of these criteria were absent in the police officer’s conduct, then the evidence against you was the result of an illegal search and seizure. As such, this evidence is inadmissible in a court of law.  A skilled defense attorney can use this factor as basis to earn a dismissal of the charges against you, or as leverage to negotiate a more favorable disposition on your behalf.

You held a valid prescription for the meth

This defense works only if the meth that you possessed was consistent with the prescription’s purpose and did not exceed the amount authorized by the prescription.

You were delivering the meth to somebody who had a valid prescription for it

Code section 11377 specifically provides that you are immune from prosecution if all of the following are true: 1) somebody other than you had a prescription for the meth; 2) you possessed the meth at that person’s direction or authorization; 3) you intended to deliver the meth to the prescription holder or otherwise lawfully dispose of the meth; 4) you did not personally use the meth or sell or distribute it.

HOW CAN WE HELP

Negin will relentlessly pursue any and all defenses relevant to your specific case.  In addition, she will present any and all mitigating factors to earn you the best disposition in your case, whether that means straight dismissal of the case or a more lenient sentence.

 

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