Whereas California has legalized the medical and recreational use of marijuana, it still takes a tough stance on all other drug-related activities. Any activity involving heroin, cocaine, meth, LSD, PCP, or unauthorized prescription medication like hydrocodone, oxycodone, Vicodin, fentanyl, or any other illegal drug comes with significant repercussions. Illegal drugs like these falls under federal and state law, and immense effort and workforce are used in finding, investigating, and prosecuting drug offenders.
If you have been charged with a drug offense in Los Angeles, you can count on our experienced drug crimes attorneys at Los Angeles Criminal Attorney to help you. When you hire us, we will handle your case with keen attention to detail as we look for proof that will be favorable to you. Our lawyers will investigate all the circumstances and facts as we strongly believe that quality preparation results in positive results.
Overview of California Drug Crimes
Any activity involving controlled substances can be classified as a drug crime and charged as a felony or misdemeanor. A controlled substance is a drug whose possession, sale, manufacture, and use are government-regulated under the U.S Controlled Substances Act. Federal and state law divides controlled substances into five schedules as follows:
- Schedule 1 drugs, including cocaine, heroin, mescaline, opiates
- Schedule 2 drugs, including morphine, raw opium, oxycodone
- Schedule 3 drugs, including anabolic steroids and pentobarbital
- Schedule 4 drugs, including most prescription drugs like zolpidem and diazepam
- Schedule 5 drugs (lesser-controlled prescription drugs like codeine)
Your drug charge will be based on the type and quantity of the narcotics involved, your criminal record, where the offense took place (for instance, near a playground or school where children are present), and other relevant factors. Drug offenses in California revolve around possession, sale or distribution, manufacturing, transportation, and trafficking. Drug offenses also involve activities to do with prescription drugs, for instance, prescription drug fraud.
California law divides the drug possession offense into two broad categories— possession for sale, criminalized under Health and Safety Code (HSC) 11351, and simple possession of controlled substances, illegalized under HSC 11350 (a).
HSC 11350(a), Simple Controlled Substance Possession
HSC 11350(a) criminalizes simple possession of illegal drugs like cocaine, heroin, and prescription medication obtained without a legal prescription. You will be subject to legal consequences if caught with any usable quantity. The general meaning of possessing a drug is to have an illegal drug in your control or possession. The prosecution must demonstrate five elements for the court to pronounce you guilty:
- You possessed an illegal drug
- You lacked a subscription for the drug
- You were aware you had the drug
- You were aware of the narcotic’s nature as an illegal substance
- The drug was in a usable quantity
Possessing some narcotics, such as meth and marijuana, is illegalized under different penal codes, although they are generally treated the same as controlled substances under drug laws. For instance, possession of meth is criminalized under HSC 11377, while simple possession of marijuana is illegal under HSC 11357.
Most people believe you must be holding the narcotics to be prosecuted for simple drug possession. However, possession is defined in three ways— actual, constructive, and joint.
Actual possession is where the narcotic is physically on you, like in your shirt pocket or in a briefcase or backpack that you are carrying. Constructive possession refers to having access to the controlled substance or the entitlement to assume control over it, for example, having the drug in your kitchen drawer, in your car, or on your nightstand. The prosecutor must prove the narcotics were within your control, meaning you could easily retrieve them to have actual possession. Joint possession is whereby more than one person possesses the drug in question.
You also need to have known you had the illegal drug and the nature of the drug as a regulated substance to be convicted. Note that the prosecutor needs not to prove you knew what specific narcotic you had for a conviction to occur. They only have to show you knew the stuff you had was some kind of drug.
Another element the prosecution needs to prove for a conviction is that the drug was in a usable quantity. That is, an amount sufficient to be utilized by you as an illegal drug. Useless debris or traces are not considered usable quantities of controlled substances. On the contrary, a usable quantity needs not to be sufficient in either strength or amount to intoxicate or impair you.
Apart from criminalizing simple possession of an illegal drug, HSC 11350(a) also illegalizes possessing an analog of a regulated substance. An analog of a drug has a chemical structure significantly similar to the drug structure or affects the central nervous system greater than or significantly similar to how a drug does.
Simple possession of a regulated substance is mostly a misdemeanor, thanks to the passing of Prop 47. A conviction is punishable by up to one thousand dollars in fines and a jail sentence of 12 months. In given circumstances, simple drug possession can be charged as a felony. These circumstances include if you have been previously convicted of a serious felony or sex crime. Being guilty of a felony is punishable by a maximum of three years in jail.
Being convicted of simple drug possession may also have adverse immigration consequences. Some California criminal convictions can result in the deportation and inadmissibility of an immigrant offender. These convictions include those of particular drug crimes, meaning that an HSC 11350 violation may result in detrimental immigration consequences based on specific case facts.
HSC 11351, Possession of a Regulated Substance Intending to Sell
Under HSC 11351, possessing a regulated substance or prescription medication obtained without a valid prescription intending to sell or distribute it is illegal. Buying or possessing certain illegal drugs intending to sell or distribute them will subject you to criminal charges under this law. For you to be guilty, the prosecuting attorney must demonstrate that:
- You had a regulated substance
- You knew you had the drug
- You were aware of the drug’s nature as a regulated substance
- You had enough of the drug to sell
- You intended to sell the drug
The difference between possession for sale and simple possession of a regulated substance is the ‘intent’ to sell. Proving intent is challenging. In the absence of a clear and voluntary admission to the HSC 11351 violation from you, the prosecution will resort to demonstrating your intent by circumstantial evidence.
Authorities rely on several factors when proving the intention to sell. Often, the prosecutor will seek a drug officer to give their opinion that you aimed to sell the drugs and not to use them, depending on the factors. Factors that show the intention to sell and therefore distinguish simple possession from possession for sale include:
- The amount of the drug (for the intent to sell, the drug quantity is more than in simple possession)
- The drug packaging
- The absence or presence of drug paraphernalia
- You are intoxicated
Violating HSC 11351 is a felony. If convicted, you will face either probation and a maximum of one year in jail or up to four years in jail. You may also be subject to up to twenty thousand dollars in fines. And if the prosecutor can show that you intended to engage in multiple sales, the judge may impose these penalties in connection with every intended sale. Additionally, being convicted under this law could result in deportation if you are an immigrant.
HSC 11364, Possession of Drug Paraphernalia
Possessing drug paraphernalia is also a form of a drug possession charge. Under HSC 11364, it is unlawful to have any instrument, paraphernalia, or device used for illegally smoking, injecting, or otherwise ingesting a drug. For the judge to find you guilty of this crime, the prosecuting attorney must prove that:
- You constructively possessed or exercised control over drug paraphernalia
- You were aware that you had the paraphernalia
- You were aware it was drug paraphernalia
Paraphernalia refers to various items used for unlawfully smoking, injecting, or otherwise consuming narcotics. Examples include, without limitation, miniature cocaine spoons, hypodermic needles, syringes, and pipes. HSC 11364 excludes items associated with the selling and manufacturing of narcotics. They include things such as:
- Capsules, balloons, or any other container used to package or conceal drugs
- Spoons, bowls, blenders, or other mixing devices utilized in compounding controlled substances
- Scales and balances used in measuring or weighing narcotics
These items are excluded because their possession is penalized under HSC 11351, possession of a controlled substance for sale, or HSC 11352, sale or transportation of a drug.
Certain people cannot be prosecuted under HSC 11364. They include:
- Doctors, pharmacists, podiatrists, dentists, veterinarians
- Law enforcement officers or anybody working under their immediate supervision or direction.
- Manufacturers, retailers, and wholesalers that are state-licensed to sell, prescribe or transfer hypodermic needles, syringes, or other objects meant for injecting drugs into the body.
Violating HSC 11364 is a misdemeanor offense. Possible penalties are a maximum of six months in jail and up to one thousand dollars in fines. Additionally, you could be subject to professional consequences if you hold a professional license. For instance, if you are a teacher convicted of possessing drug paraphernalia, you might be placed on an immediate leave of absence pending the resolution of your charges.
HSC 11352, Transportation or Sale of a Controlled Substance
HSC 11352 illegalizes the transporting, furnishing, selling, importing, or administering of an illegal drug. The prosecution has to prove the following for a conviction:
- You sold, furnished, administered, gave away, transported for sale, imported into California an illegal drug
- You were aware of the narcotic’s presence
- You were aware the drug was a controlled substance
- The drug was in a usable quantity (if charged with transporting for sale)
You may also be prosecuted under HSC 11352 if you had offered to transport, sell, administer, furnish, or give away illegal drugs. Although, the judge can only convict you of offering to transport or sell narcotics if you intended to follow through on it when you offered.
Investigation for the transportation or sale of illegal drugs often involves sting operations. Some HSC 11352 arrests occur because law enforcement gained info from an undisclosed informant. Another prevalent way of collecting proof for a drug transportation or sale case is via surveillance posts or observation. This entails the police setting up camps to monitor suspected drug-related activities— usually near the suspect’s business or home or in a place where narcotic sales generally take place.
Transporting or selling drugs is deemed a felony. The possible basic consequences for a first-time violation are:
- Felony probation,
- A maximum of $20,000 in fines
- Up to five years in jail under the realignment program or up to nine years of a jail term if you transported drugs for sale across more than one county line within California
When aggravating circumstances are present in your case, you can be subject to more severe consequences for transporting or selling drugs. These factors include:
- Trafficking drugs near homeless shelters or drug treatment facilities
- Transportation or sales of large amounts of cocaine or heroin
- Prior convictions
- Furnishing or selling drugs to specific people
The sale or transporting for sale of a regulated substance is also a deportable offense under immigration law, meaning if you are an immigrant, you may be deported if convicted.
HSC 11379.6, Manufacturing of a Controlled Substance
For the judge to pronounce you guilty of manufacturing a controlled substance, the prosecutor must demonstrate that you manufactured, produced, compounded, and prepared an illegal drug and that you knew the substance was a narcotic.
You need not have completed the drug manufacturing process to be convicted. You are guilty, provided the prosecution can show that you knowingly participated in the process of making a drug and the participation was at the intermediate or beginning steps of the operation.
Manufacturing illegal drugs is considered a felony crime punishable by a maximum of seven years in prison and up to fifty thousand in fines. You will face more severe prison sentences if convicted of manufacturing larger volumes of an illegal drug. Manufacturing an illegal drug can also have adverse immigration consequences. Violating HSC 11379.6 is a crime of moral turpitude and an aggravated felony; therefore, a conviction can result in you being either labeled inadmissible or deportable if you are an immigrant.
Other drug crimes prosecuted in California are:
- HSC 11357, illegal cannabis possession
- HSC 11365, aiding and abetting the use of illegal drugs
- HSC 11377, possession of meth for own use
- HSC 11375(b)(2), illegal possession of given prescription sedatives
- HSC 11550, under the influence of an illegal drug
- HSC 11358, unlawful growing of Cannabis for own use
- VC 23222(b), possession of an open Cannabis container in a vehicle
- PC 653(f), soliciting a person to commit an offense to facilitate personal use of drugs
- HSC 11368, using or possessing a forged prescription to acquire drugs for own use
- PC 381, possessing a toxic substance for huffing
Drug Diversion Programs
Drug diversion programs— permissible under California drug court, Proposition 36, and PC 1000— allow persons accused of specific non-violent controlled substance possession crimes to do their time in drug-related treatment programs instead of prison or jail. For instance, if convicted of simple possession of a regulated substance, you might be sentenced to drug diversion instead of jail. The most notable benefit of a drug diversion program is if you complete the ordered program, the judge will likely dismiss your charges.
Although, drug diversion programs are not an option for everybody and have several restrictions. One of the restrictions is that they do not apply to narcotics sales crimes. This is to say that, for instance, you can qualify for drug diversion if accused of simple possession of a drug, but you will not be eligible if charged with possessing a controlled substance for sale. In this case, it will be highly essential for your lawyer to try and negotiate a charge reduction to simple possession if you have been accused of possession for sale.
However, since you cannot possess an illegal drug intending to sell without possessing the substance, simple drug possession is known as a lesser included offense of HSC 11351. Consequently, even if the D.A accuses you of drug possession intending to sell, a jury/judge may alternatively opt to find you guilty of HSC 11350 simple possession instead. Should they opt to do so, you could then qualify for drug diversion.
Charges of manufacture of a controlled substance and transportation or sale of a controlled substance will not qualify you for drug diversion. On the other hand, possession of drug paraphernalia can be eligible for drug diversion.
General Defenses to Drug Crimes
Being charged with a drug offense is not the end of you. With the help of an experienced drug crimes defense lawyer, you can argue several defenses that may lead to a charge dismissal or reduction. There are legal defenses to a specific charge, while others cut across all or most drug offenses. General legal defenses to drug charges include:
In most drug offenses, suspects are arrested in sting operations. Although, any resulting charges must be dismissed if a police officer lured an individual into committing a criminal offense. The luring is called entrapment. It applies to overbearing police officers’ conduct. Entrapment entails the police using fraud, harassment, pressure, threats, or flattery to convince someone to commit a crime. You can argue the entrapment defense as long as you can prove that you committed an unlawful act and only did so due to entrapment.
Illegal Search and Seizure
There are many ways through which police officers can violate the search and seizure statutes. For instance, an unlawful search and seizure allegation can arise from:
- A search performed without a valid search warrant
- Illegal detention (where the law enforcement officers did not have the legal right to stop you, to begin with, any narcotics they subsequently discover may not be used as proof against you)
- Any search that is beyond the limit of the search warrant (for instance, if the search warrant only permits the police to search your bedroom, any drugs they discover after searching the rest of the house are not admissible as proof)
If your attorney suspects you are the victim of unlawful search and seizure, they can file a motion to suppress evidence per PC 1538.5. The judge may dismiss or reduce the charges if you win the motion.
Lack of Knowledge
If the prosecution cannot prove you were aware of the narcotic’s presence or its nature as a controlled substance, you cannot be pronounced guilty of the relevant drug charge. Believing that one drug is the other is not a valid defense. For instance, believing cocaine is PCP. Although, thinking that cocaine found in a bag was sugar might be a defense.
The defense of lack of knowledge will work best if you do not have any prior conviction or arrest of drug-related crime. If that is the case, you can effectively persuade a jury/judge that you truly did not know the drug was a controlled substance, as opposed to a known dealer or user trying to claim this same thing.
Find a Knowledgeable Drug Crimes Lawyer Near Me
Criminal penalties may not be the only penalties you can face for a drug crime conviction. A conviction can also negatively impact your finances, employment, and personal life.
However, you should not despair or rush to admit guilt if charged or arrested with a drug offense. You should act quickly to ensure your legal rights and freedoms are protected. The best way of doing this is to seek help from a skilled drug crimes defense attorney. If you have been charged in and around Los Angeles, contact us at Los Angeles Criminal Attorney, and we will help you. Whether you face misdemeanor or felony charges, we will assist you in building a strong defense for the best possible outcome for your case. Call us at 424-333-0943.