In order to prove you guilty of possession of a controlled substance for sale under Health and Safety code section 11351, the prosecutor must establish beyond a reasonable doubt the following: a) you knowingly possessed or purchased a controlled substance; b) you knew of the drug’s nature as a controlled substance; c) you had the intent to sell the drug; and d) you possessed enough quantify of the drug to use or sell it.
“A controlled substance”
Any drug or chemical whose manufacture and use are controlled by the “Controlled Substance Act” is a controlled substance. Opiates and Opiate derivatives, cocaine, heroin, codeine, hydrocodone, and certain hallucinogen substances are examples of controlled substances.
Possession for purposes of code section 11351 occurs in three forms: Actual, constructive, and joint. You have actual possession of a drug when the drug is on your person—e.g., in your pocket—or inside a purse or briefcase that you are carrying on your person. You have constructive possession of a drug when the drug is located in an area to which you have access or over which you have control. For example, if the drug is located in your basement, you have constructive possession of that drug because you have access to your basement. You have joint possession of a drug when you share possession of the drug with somebody else. For example, if the drug is found in a closet that you share with your wife, then you and your wife can be said to have joint possession of the drug.
You had the requisite “knowledge”
The prosecutor must prove that you knew you possessed the drug and that you knew of the drug’s nature as a controlled substance. For example, you borrow a friend’s car. Unbeknownst to you, your friend had placed a bag of cocaine in the glove compartment of the car. You cannot be found guilty of a 11351 because you did not know that the cocaine was in your possession.
To prove that you knew of the nature of the drug as a controlled substance, the prosecutor need not prove that you knew the exact name of the drug, the chemical composition of the drug, or the drug’s effects. All that the prosecutor has to prove is that you knew that the drug was a controlled substance. This “knowledge” can be inferred or deduced from your conduct. For example, Jack is driving when he realizes that a police car is attempting to stop him. He immediately takes baggies of cocaine from his glove compartment and attempts to discard them. This act reveals that Jack knew that what was in his possession was a controlled substance—i.e., illegal.
You possessed enough quantity of the drug to sell it
The quantity of the drug that you possess has to be such that it can actually be consumed as a drug by the person to whom it will be sold. Residues or traces of a drug that cannot produce the intended effect of the drug are not sufficient to satisfy this “quantity” element of code section 11351.
You had intent to sell the drug
The prosecutor must prove that you possessed the drug in order to sell it. If you possessed the drug just for your own personal use, then you cannot be found guilty of code section 11351. This is a crucial distinction because simple possession of a controlled substance carries much less serious penalties than possession of a controlled substance for sale.
The “intent” behind your possession of the drug is normally proven by circumstantial evidence—that is, by the circumstances surrounding your conduct. Factors that speak to your intent include the quantity of the drug, how it is packaged, the presence or absence of drug paraphernalia, and whether or not you are under the influence. Absence of drug paraphernalia, packaging of the drug in multiple baggies, receipts and ledgers, and multiple cell phones, weighing scales or any instruments used to measure or separate the drug are some common factors, or “indicia’s” of sales, that indicate a 11351 offense.
The answers to the following questions can determine whether possession of the drug was for sale or for personal use.
How was the drug packaged? How the drug is packaged can be either the most damning evidence against you or the most favorable evidence in your favor. The packaging of the drug in numerous small baggies can suggest intent to sell or distribute the drug. Conversely, the packaging of the drug in one bag might, along with other factors, indicate that you simply intended to use the drug for personal use.
Was there any drug paraphernalia? Drug paraphernalia is a pipe, syringe, or any other instrument used to ingest or inject a controlled substance. The presence of any such paraphernalia might indicate that you intended to possess the drug for personal use. Conversely, the absence of any drug paraphernalia, combined with other indicia’s of sale, might indicate that you did not possess the drug for personal use.
Were there any instruments used to measure, dilute, or separate the drug? Any tool, such as a scale, used to measure, separate, or dilute the drug can indicate intent to sell.
Were there any other indicia’s of sale such as multiple cell phones, receipts, or ledgers? Drug dealers commonly carry multiple cell phones to cover their tracks or dilute any evidence of their transactions. Therefore, the presence of multiple cell phones is incredibly incriminating. So is the presence of receipts and ledgers showing transactions related to the drug.
Were you under the influence? If you were under the influence of the drug at the time it was discovered in your possession, then clearly you used the drug for your personal use. However, this fact is not mutually exclusive with your intent to sell the drug. You could be both a user and seller of the drug.
You are a victim of illegal search and seizure
If the police conducted an improper warrantless search of your person, vehicle, or home, or if their search of your vehicle and home exceeded the scope of the warrant, then you are a victim of illegal search and seizure. In that circumstance, your attorney needs to file the proper motions to challenge the admissibility of the evidence discovered as a result of the police’s improper conduct. An improper search and seizure of your person or vehicle can also constitute leverage that your attorney can use to negotiate a better disposition on your behalf.
You did not possess the drug
The circumstances of your case might indicate that you either did not know that the drug was in your possession or that you never gained access to or possession of the drug. For example, Jack contacts an undercover cop on the internet and arranges to buy narcotics from him. The two plan to conduct the transaction at a coffee shop. Jack drives over to the coffee shop. He is arrested by the police even before he drives over to the coffee shop. In this instance, while Jack had the requisite intent, he never took control or possession of the drug. Therefore, arguably, he cannot be found guilty of code section 11351.
You did not know that the drug in your possession was a controlled substance
You might not have realized that what you had in your possession was a controlled substance. For example, you might have genuinely mistaken a bag of cocaine in your possession for sugar. This defense is most apt when you do not have a history of drug related offenses.
You had no intent to sell
Often, police misconstrue simple possession of a drug as intent to sell the drug. Possession by itself does not indicate intent to sell, as you can possess a drug only for your own personal use. The fewer indicia’s of sale present in your particular case, the weaker the prosecution’s argument that you possessed the drug for sale.
Code section 11351 is prosecuted as a felony. A conviction under 11351 subjects you to formal probation, up to one year in county jail, or 2, 3, or 4 years in county jail.
If you are convicted of possessing cocaine or heroine for sale, you face an additional 3 years if the substances was above one kilogram, 5 years if the substance was above 4 kilograms, 10 years if the substance was above 10 kilograms, 15 years if the substance was above 20 kilograms, and 25 years if the substance was above 80 kilograms. If you have prior felony convictions for possession for sale or transportation, you face an additional and consecutive three-years for each prior felony conviction.
HOW CAN WE HELP YOU
Police officers do not always accurately interpret a set of circumstances and sometimes have a tendency to exaggerate or omit key facts in order to reach a certain desired conclusion. This is especially pertinent in arrests for code section 11351, as factors that might otherwise indicate possession for personal use or no unlawful conduct at all can be easily distorted, taken out of context, or omitted in order to secure a conviction for 11351. For that reason, Negin never takes a police report at face value. She will conduct any and all independent investigations, and seek all discovery, in order to thoroughly examine the specifics of your case and litigate any and all legal defenses on your behalf.