It is a felony in California to possess a controlled substance for sale. When you or a loved one is charged with possession for sale offense, it's always in your best interests to contact a Los Angeles Criminal Attorney to get your defense strategy started. These drug crimes, in addition to incarceration also carry collateral consequences that affect other areas of your life as well.
California prosecutes crimes for possession of a controlled substance for sale under HS 11351. The statute outlines the crime as follows:
- Possessing a controlled substance
- With the intention to sell
A controlled substance is any substance regulated under the US Controlled Substances Act. According to the act, substances such as opiates, heroin, peyote, cocaine, GHB, hallucinogens, Vicodin, and codeine are controlled substances.
When arrested for the offense, the prosecution has the burden to prove that you fulfill all the elements of the offense. These elements include:
- You possessed a controlled substance
- You knew that you had the controlled substance
- You possessed enough quantities of the substance to sell
- You possessed or purchased the controlled substance intending to sell or resell
California law defines possession in several ways, resulting in three forms of possession. The first one is actual possession which means that the controlled substance was on your person, whether you were holding it or carrying it in a backpack.
The second form is constructive possession, which means that you were not in physical possession of the controlled substance but have access to and control over it. For example, if the police find controlled substances on your nightstand or car.
Joint possession is the third form of possession which occurs when more than one person has joint access and control over a controlled substance. For instance, if you share a shop with your partner and use it to sell or store controlled substances, the police may charge you with joint possession.
Another important element the prosecution has to prove is your knowledge of the existence of the controlled substance and its nature. This would mean that if you weren't aware that you were carrying a controlled substance, you cannot be charged based on your ignorance of the matter.
The element of knowledge, however, would not protect you if you knew that the substance was a controlled substance, but you don't know its actual name. For instance, if you mistake cocaine for heroin, you are still considered to be knowledgeable of the fact that you possessed a controlled substance.
The prosecution must also prove that you had enough of the controlled substance to sell, regardless of its ability to affect a user. If you were found with traces of a controlled substance, the possession for sale charge probably wouldn't stick.
Finally, the prosecution must prove that you intended to sell the controlled substance. They deduce your intention based on circumstantial evidence at the crime scene. The most common ways the prosecution proves you intended to sell a controlled substance include:
- You possessed the controlled substance in quantities that exceed those typical for personal use
- You had the controlled substance along with large amounts of small-denomination cash
- You subdivided the controlled substance into small packaging materials. Portioning out a controlled substance leads to the conclusion that you intended to sell. However, it is not a reliable metric since people portion out their drugs regularly for efficient transportation.
- You were arrested in a location commonly used for selling drugs
- You had equipment often associated with drug sales, including weighing scales and packaging materials.
- Many people came and left your home after staying a short time.
However, when working with a drug defense attorney, you can demonstrate that you did not possess it for sale, as many drug users are known to buy in bulk and potion out their stash.
Penalties and Sentencing
Violation of HS11351 is a felony offense with a jail sentence of two, three, or four years. The judge might choose to place you on probation, but you must spend up to a year in jail.
The court might also impose similar penalties for every intended sale that the prosecution can prove. Possessing a cocaine or heroin base also results in additional sentencing depending on the weight of the base.
For substances that weigh more than a kilogram, you will spend an additional three years and an additional five years for a base that weighs more than four kilograms. You face an additional ten years if the substance weighs more than 10 kilograms. You also face 15, 20, and 25 additional years on your sentence if the substance weighed more than 20, 40, and 80 kilograms, respectively.
Possession of a controlled substance for sale is a deportable offense. Therefore, you risk deportation upon conviction for the offense if you are a legal alien.
Fighting the charges against you with the help of an attorney is the best way to defend yourself when facing charges. Your attorney will build a defense strategy based on the circumstances of the offense and present them during the pretrial and trial stages.
Some of the defenses they may use in HS 11351 cases include:
- You Had No Intention to Sell
Your intent behind possessing a controlled substance determines the type of offense you are charged with. When charging you under HS 11351, the prosecution must prove that you intended to sell the controlled substance.
Proving intent is often hard for prosecutors, as they have to rely on circumstantial evidence, such as the quantities of the controlled substance, the presence of packaging materials, and weighing equipment.
However, such evidence does not necessarily mean you intended to sell the controlled substance.
The defense of lack of intent to sell is an admission that you possessed the drug. The defense works well if the prosecution can prove that you possessed the drug, but they cannot establish your intent to sell beyond a reasonable doubt.
If successful, the lack of intent defense results in charge reduction to possession for personal use. Possession for personal use carries lesser penalties, and you can attend drug diversion instead of incarceration for the offense.
- Illegal Search and Seizure
Drug crimes are marred with illegal searches and seizures. To bust drug offenders, the police might search your property without a warrant, exceed the limits of their warrant, or detain you unlawfully. In such cases, they have obtained evidence through an illegal search and seizure. Such evidence is inadmissible in court and cannot be used to convict you for an offense.
If you are an illegal search and seizure victim, your defense attorney will file a motion to suppress evidence. This motion requests the court to exclude any illegally obtained evidence.
- No Knowledge
Knowledge is an important element in possession charges. The prosecution must prove that you knew the substance was a controlled substance and that it was in your possession. For example, if your partner is dealing drugs and they store them in your shared house, but you are unaware of their presence, you cannot be charged with possession.
Similarly, you cannot be charged for the offense if you were unaware of the substance being a controlled substance. For instance, if you mistook cocaine for sugar, you cannot be charged for possession.
However, if you believe one controlled substance to be another (for instance, you believe that PCP is cocaine), you are still guilty.
- No Possession
The first element of possession of a controlled substance is that you had either physical, constructive, or joint possession of the controlled substance. However, you cannot be guilty of the offense if you were not in possession of the controlled substance.
For example, even if you intended to purchase a controlled substance for sale but were arrested before you could take the substance, you did not have possession of the substance and, therefore, cannot be convicted for possession for sale.
Entrapment is common for drug crimes. Entrapment occurs when a police or law enforcement officer coerces or lures you into committing a crime. For entrapment to work as a defense, you must prove that you would not have committed the offense outside the officer’s harassment.
Note: it is not illegal for an officer to offer you an opportunity to participate in an offense. They can also initiate criminal activity and engage in undercover operations.
Entrapment covers conduct that amounts to:
Using entrapment as a defense does not equal admitting guilt to the possession charge. Instead, you are asserting that you had no intention of committing the offense were it not for the relentless harassment from the law enforcement officer.
- Insufficient Evidence
The prosecution must present sufficient evidence to secure a conviction for possession of a controlled substance for sale. The evidence is considered sufficient if it can help prove, beyond a reasonable doubt, that you had a controlled substance that you intended to sell.
In most cases, where the prosecution doesn’t have sufficient evidence, they will agree to reduce your charges to simple possession. Alternatively, the prosecution may dismiss your charges if they cannot prove most of the elements of the offense beyond a reasonable doubt.
- Police Misconduct
In addition to an illegal search or seizure, police often engage in other forms of misconduct, particularly when investigating drug charges. Misconduct might include planting evidence on your property or your person, falsifying a police report about where they found the drugs or why they arrested you, and using excessive force to arrest you, obtain evidence, or get a confession.
Acts of police misconduct violate your rights and compromise the prosecution's case. Therefore, if any misconduct occurred in your case, notify your attorney so they can raise the issue in court.
Usually, evidence obtained through police misconduct is inadmissible in court. For instance, if they forced a guilty confession out of you, the confession is inadmissible in court. The officer involved also cannot give their testimony as a witness.
Should You Fight to Get Your Charges Reduced?
In a criminal court process, there are several possible outcomes:
- Your charges may be reduced
- You could be convicted for the offense
- You could be acquitted
An acquittal is preferable, especially when you have sufficient evidence that shows you did not commit a crime. In some cases, however, an offense could end in a charge reduction.
The common reasons the prosecution will agree to a charge reduction include the following:
- They have insufficient evidence to prove all the elements of the crime or new evidence undercuts their current evidence. In most cases, unless the prosecution can prove elements of another offense, they will dismiss your care.
- The police violated your constitutional rights during any stage of the arrest or questioning. Police are supposed to adhere to regulations when arresting you, collecting evidence, and interrogating you. For instance, if they must have reasonable cause to arrest you, have the warrant to search your property, and stay within the limits of the search warrant.
- The prosecutors engaged in prosecutorial misconduct.
- Sometimes, the prosecution agrees to charge reductions, especially minor crimes, to focus their resources on more serious offenses.
In the case of possession for sale, your case could be reduced to possession for personal use. Possessing for personal use is still an offense, but it carries less harsh sentencing. In addition, it also qualifies you for a drug diversion program. If the court agrees to drug diversion, you can spend a court-mandated period in drug treatment, and upon successful completion, your charges are dismissed.
Your attorney will negotiate with the prosecution based on the evidence available to get your charges reduced. If the prosecution and the defense cannot agree on a settlement during the pretrial stage, the court process proceeds to trial.
Frequently Asked Questions
- What happens when I'm charged with possessing a controlled substance for sale?
After the prosecution files charges against you, the criminal court process begins. The process starts with your arrest, booking, arraignment, pretrial process, trial, and sentencing. You may not go through all these steps, depending on the plea you take and whether your case ends in a dismissal.
- What should I do after an Arrest?
After the police arrest, they will take you to a police station for booking. During transportation and while in custody, keep from talking about the offense with the police.
The police work to get evidence for the prosecution. Therefore, everything you say to them shall be used in court against you.
Take advantage of your right to have legal representation and contact a reliable drug crimes defense attorney who understands California law.
- What does possession for sale mean?
The law defines possession of a controlled substance for sale as knowingly having access or control to a controlled substance to sell. For this offense, you must know that the substance is controlled.
- I am innocent. Should I hire an Attorney?
Yes. The criminal court process relies on the standard of reasonable doubt to determine whether you are guilty or not. When you are charged with possession for sale offense, even when you're innocent, it's crucial to hire an attorney.
The attorney challenges the prosecution's evidence to show that the evidence does not show that you are guilty beyond a reasonable doubt. When choosing an attorney, work with one who has verifiable results of helping other defendants fight their charges. Ask about their experience, their defense process, and what they think about your chances in the case.
- Can I be convicted for possession for sale, even for personal use?
It is possible, especially where the prosecution has strong evidence that you possessed for sale. However, with the help of an attorney, you can challenge the prosecution and present evidence to demonstrate that you possessed it for personal use.
- How will the prosecution prove I was in possession of a controlled substance?
If you had physical possession of a controlled substance, the prosecution would present evidence that the controlled substance was found on your person, in your car, or house.
- How do Police Investigate Possession of a Controlled Substance?
In most cases, possession offenses come from a tip-off from an informant. They could also arise from an undercover or sting operation by the police. The police might also arrest you for possession during a routine traffic stop.
- Am I eligible for Drug Diversion?
No. If you are charged with possession of a controlled substance for sale, you are not eligible for drug diversion. However, if you can get the charges reduced to possession for personal use, you can qualify for drug diversion.
You could be charged with possession for sale or some of these related offenses. They include:
- HS 11352 – Sales and Transportation of Controlled Substances
HS 11352 prohibits the sale and transportation of a controlled substance. Under the statute it is a crime to sell, transport for sale, give away, furnish, or administer a controlled substance to another person.
Sales and transportation of a controlled substance is a felony punishable by three to nine years and up to $20,000 in fines. The court could also impose additional sentencing if there are aggravating circumstances such as:
- Trafficking cocaine, cocaine base, or heroin within the grounds or 1000 ft. of a drug treatment facility or a homeless shelter. For this factor, you face an additional year in jail.
- Transporting large quantities of cocaine, cocaine base, or heroin carries an additional sentence of between three and 25 years, depending on the quantity of the substance.
- Prior convictions will also affect your sentence. For each prior felony conviction, you face an additional and consecutive three-year jail sentence.
- Selling or furnishing a controlled substance to a pregnant woman, a person undergoing treatment for a drug or mental health problem, or a person with a previous violent felony conviction.
Like possession for sale, the offense is a deportable offense for legal aliens.
- Possession, Sale, and Transportation of Methamphetamines
Selling or exchanging meth is a crime under HS 11379. The offense is a felony that carries a jail sentence of up to four years and up to $10,000 in fines. It also carries additional penalties if:
- You transport meth across county or state lines
- You sold meth at a drug treatment facility or homeless shelter
- You enlisted a minor to help in the sale and transportation of meth
- You had more than one kilogram of methamphetamines in your possession
Like possession of a controlled substance for sale, possessing, selling, and transporting meth is a deportable offense.
- Sale of an Imitation Controlled Substance
An imitation controlled substance is a counterfeit drug that replicates the real drug. Manufacturing or distributing an imitation controlled substance is a misdemeanor under HS 109575. It carries a sentence of up to six months.
It’s also an offense under HS 11355 to sell an imitation drug. The offense occurs when you intentionally sell an imitation controlled substance when you had offered to sell the authentic version. The offense can be a felony or misdemeanor punishable by up to three years and up to one year in county jail, respectively.
- Possession of Marijuana for Sale
Marijuana has been legal in California for several years now. However, it is still a heavily regulated sector, and possession for sale could still land you in trouble.
Selling marijuana is also legal, but you must possess a license to operate. Possession of marijuana for sale is often a misdemeanor or a felony, depending on the circumstances.
If you intend to sell it on the black market, you'll be sentenced to up to 6 months in jail. On the other hand, you could be charged with a felony if you intended to sell it without a license and:
- You are a repeat offender
- You have a previous violent or sex crime conviction on your record
- You intended to sell to minors
Find a Drug Crimes Defense Attorney Near Me
If you are facing charges for possession of a controlled substance for sale, contact the Los Angeles Criminal Attorney for guidance and legal defense. Depending on the circumstances, you will be guided on what the charges mean and the potential defenses applicable to your case. You can book a free consultation at 424-333-0943 to get started.