Are you facing any drug crime charges in California? Drug charges consist of some of the most confusing laws in California, not to mention the complications that arise in the process of officers arresting you or finding physical evidence to link you to the crime. California Criminal Lawyer Group helps defendants facing charges for different types of drug crimes. We defend people facing similar charges and understand the common legal issues that arise in such cases.
Definition and Overview
A drug crime is any offense in violation of state or federal regulations that govern controlled substances. The US government under the Controlled Substances acts provides regulations and enforcement through the Drug Enforcement Administration.
This act lists different groups of controlled substances. It is updated yearly based on ongoing research into the benefits, medical uses, and the potential for dependence or abuse of these drugs. The act divides controlled substances into five schedules.
Schedule one drugs are those with a high potential for abuse and lack an accepted medical use. They include:
- Marijuana (cannabis)
Schedule II drugs have a high potential for abuse and could lead to physical or psychological dependence. They include:
Schedule II three drugs are substances or chemicals with moderate to low potential for dependence. They include:
- Anabolic steroids
Schedule IV drugs are those with a low potential for abuse or dependence. They include Darvon, Ativan, Ambien, Darvocet, Talwin, Tramadol, Soma, Valium, and Xanax.
Schedule V drugs are substances or chemicals with a lower potential of abuse and dependence than schedule IV drugs and consist of drugs with limited quantities of some narcotics. Schedule V drugs are used for analgesic, antidiarrheal, and antitussive purposes. They include Lomotil and lyrica.
Driving Under the Influence of Drugs
VC 23152 considers a person to be driving under the influence of drugs when they cannot drive with the same caution a sober person would exercise under similar circumstances due to a drug or a combination of drugs and alcohol.
The prosecution could bring charges for driving under the influence of drugs under two statutes:
- VC 23152 (f), which prohibits driving under the influence of any drug or
- VC 23152 (g), which prohibits driving under the influence of drugs and alcohol
California defines a drug as a substance or combination of substances except for alcohol that could affect the nervous system or brain, consequently impairing their ability to drive as a sober cautious person would under similar circumstances.
Drugs, therefore, mean any legal or illegal substance other than alcohol that could impair your mental and physical faculties. Some of the common drugs that lead to prosecution for driving under the influence of drugs or alcohol include:
- Illegal drugs such as heroin
- Legal drugs such as marijuana
- Prescription medications
- Over the counter medication
Unlike driving under the influence of alcohol, California does not have a specific limit for drugs. Therefore, the law makes it illegal to:
- Drive under the influence of drugs
- You drove under the influence of a combination of drugs and alcohol
- You drove while addicted to any drug, and were not on treatment for that addiction
Like a DUI, an arrest for a DUID offense begins with a traffic stop. The officer might ask you questions about your drug or alcohol consumption and follow up with a PAS test or field sobriety tests. However, in most DUID investigations, officers will involve a Drug Recognition Expert (DRE). DREs are specially trained to identify people who are under the influence of narcotics.
When a DRE is called to the scene to investigate the offense, he or she will follow a 12-step evaluation process to determine impairment.
You have the right to remain silent and avoid self-incrimination during the DRE investigation. You could also refuse to take field sobriety tests. However, refusing a chemical test after your arrest could lead to additional consequences.
The officer will arrest you if they have probable cause for a DUI arrest. Once arrested, you are required to submit an evidentiary chemical test. A blood test usually reveals the presence or absence of the drug for which the officers tested. Once the lab discovers a positive result for drugs, they will run a quantitative test to determine the drug concentration in your system.
Driving under the influence of drugs is a misdemeanor in California for the first three offenses within ten years. The penalties for a first offense include:
- Summary probation
- A fine of $390 to $1800
- License suspension for at least 6 months
- At least 3 months in California DUI school
A subsequent misdemeanor conviction will result in stiffer penalties, longer jail term, and longer license suspension.
If you cause injury while DUID or have at least three prior DUI/DUID convictions within ten years, you will be convicted for a felony with penalties such as:
- 16 months to four years’ incarceration in jail or prison
- Up to $5,000 in fines
- Suspension of your driver’s license for at least a year
Under the Influence of a Controlled Substance
HS 11550 makes it a crime to be under the influence of a controlled substance, unless the substance is administered under the direction of an individual with the state licensing to prescribe, dispense, or administer a controlled substance.
You are guilty of being under the influence if:
- You willfully used a controlled substance or narcotic
- You were willfully under the influence of that substance or narcotic
Some of the controlled substances that could lead to a conviction under this statute include meth, PCP, codeine, heroin, and hydrocodone.
Willfully using a controlled substance or narcotic means that you took that substance on purpose as opposed to being forced or tricked into taking it. Using a controlled substance refers to the current or immediate use of a controlled substance. The definition of 'current use' of a controlled substance will vary from court to court and on a case-by-case basis.
Being under the influence means the substance affected your nervous system, brain, and muscles.
Violating HS 11550 is a misdemeanor punishable by up to one year in county jail. Depending on your situation, you might qualify for drug diversion where you serve your sentence in a drug treatment facility instead of jail or prison. The offense might have negative immigration consequences depending on the circumstances.
Fortunately, you might have a conviction for this offense expunged upon successfully completing your probation or jail term.
Manufacturing of a Controlled Substance
California Health and Safety Code 11379.6 makes it a crime to manufacture a controlled substance. The prosecution has to prove that you compounded, manufactured, prepared or produced a narcotic and you knew that the substance was a narcotic. You could also be guilty of manufacturing a controlled substance if you participated in any of the beginning, or intermediate processes of the manufacturing.
A controlled substance includes any substance listed in the controlled Substances Act. They include cocaine, ecstasy, heroin, marijuana, PCP, methamphetamines, and LSD.
Manufacturing a controlled substance is a felony with a potential state prison sentence of three, five, or seven years and a fine of up to $50,000. The judge could impose harsher penalties if you manufactured high amounts of controlled substances.
A conviction for manufacturing a controlled substance has negative immigration consequences, including inadmissibility and deportation. Manufacturing a narcotic is an aggravated felony that will result in mandatory deportation.
You will also lose your rights to buy or own a gun in California. Unfortunately, you cannot get a conviction for manufacturing a controlled substance expunged.
Possession of Materials for Manufacturing Controlled Substances
California Health and Safety codes 11383 and 11383.5 make it a crime to possess certain chemicals for use in the manufacture of controlled substances. The prosecution will have to prove that:
- You possessed certain chemicals in quantities that could be used to produce meth or PCP
- You had the specific intent to use these chemicals in the manufacture of either meth or PCP
You are guilty of possessing these materials as long as you have control or the right to control these materials, directly or through another person. The prosecution does not need to show that you manufactured or attempted to manufacture the controlled substance. All they have to prove is that you had the intent to do it immediately or later. Possessing materials for the manufacture of a controlled substance is a felony punishable by two, four, or six years imprisonment.
Possession of a Controlled Substance
HS 11350 makes it a crime to possess a controlled substance. This statute defines the offense, usually known as simple possession or possession for personal use. Possession for personal use refers to the crime of having in your possession or control an illegal substance under federal or state law or a prescription drug for which you lack a valid prescription.
The crime consists of several elements that the prosecution must prove to secure a conviction under HS 11350:
- You possessed a controlled substance,
- You did not have a valid prescription of the substance,
- You were aware of the substance's presence,
- You knew of its nature as a controlled substance,
- The substance was in a usable amount
Possession of a controlled substance for personal use is a misdemeanor punishable by up to a year in county jail and a maximum fine of $1,000. In cases where you have a prior conviction for a sex crime or serious felony, you will be convicted for a felony with a maximum of three years in county jail.
Possession of a Controlled Substance for Sale
Possessing certain controlled substances for sale is a felony under Health and Safety code 11351. Some of the common controlled substances that could lead to a conviction under this statute include opiates, cocaine, peyote, heroin, cocaine, GHB, and some hallucinogens. Certain prescription drugs such as Vicodin and codeine could lead to a conviction under this statute.
The elements that the prosecutor has to prove to show that you possessed a controlled substance for sale include:
- You purchased or possessed the controlled substance
- You know that you possessed that controlled substance
- You knew its nature as a controlled substance
- You possessed enough for use or sell
- You either possessed the substance to sell or purchased it to resell
Possession means that:
- You were in actual or physical possession of the substance; for example if you have it in your pocket.
- You had access or control to the controlled substance even if you do not have physical control over it,
- You or more people are in actual physical possession or have control over the controlled substance,
The prosecutor must also prove that you knew that you possessed a drug and that the drug was a controlled substance when proving that you knew that you possessed the drugs. For instance, if you borrow a friend’s car, but they leave a controlled substance inside without informing you, then you cannot be guilty of possessing a controlled substance.
You must also know that the substance was a controlled substance, regardless of your ability to identify the exact name of the drug, its chemical makeup, or the expected drug results.
Another element the prosecution must prove is that you had enough of the substance to use or sell. In this case, the prosecution does not have to prove that the amount was enough to cause impairment.
Finally, the prosecution has to prove that you intended to sell the controlled substance. They could use circumstantial evidence such as measuring instruments, weighing scales, or packing materials.
Possessing a controlled substance for sale is a felony punishable by two, three, or four years in county jail and up to $20,000 in fines. The judge might sentence you to up to a year in county jail and probation.
Aggravating factors such as possessing a cocaine base for sale attract between three to five years in county jail and up to $20,000 in fines. You also face additional sentences as follows for violating HS 11351 where the controlled substance is heroin, cocaine, or cocaine base:
- Three years for substances weighing more than 1 kg
- Five years If the substance weighs more than four kilograms
- Ten years for substances weighing more than 10 kg
- Fifteen years for substances heavier than 20 kg
- Twenty years for substances heavier than 40 kg
- 25 years for substances weighing more than 80 kg
You could qualify for drug diversion under Prop 36, PC 1000, or California drug court. Diversion allows you to serve your sentence in a drug treatment program instead of going to jail or prison.
Sale or Transportation of a Controlled Substance
HS 11352 makes it a crime to sell or transport controlled substances such as heroin, cocaine, peyote, LSD, codeine, oxycodone, and Vicodin. Other prohibitions under this statute include:
- Selling drugs
- Transporting controlled substances to sell
- Furnishing or administering drugs to another person
- Giving another person controlled substances
- Importing a controlled substance into California
- Offering to do any of these prohibited acts
The prosecution must prove the following elements of the offenses:
- You committed one of the prohibited acts listed above
- You were aware of the drug’s presence
- You knew the drug’s nature as a controlled substance
- The substance was in a usable amount
Selling or transporting a controlled substance is a felony in California punishable by:
- Formal probation
- Three, four, or five years in county jail or three, six, or nine years if you transported a controlled substance across two or more county lines within the state
- Up to $20,000 in fines
Certain aggravating factors also make the penalties severe when present in your case. They include:
- The judge might impose an additional year in jail if you trafficked within one thousand feet of a drug treatment center or a homeless shelter where the controlled substance includes heroin, cocaine, or cocaine base.
- You will also get the following enhancements for selling or transporting large quantities of a controlled substance that contains cocaine, cocaine base, or heroin as follows:
- Three additional years for substance weighing more than one kilogram
- Five years for substance weighing more than four kilograms
- Ten years for substance weighing more than ten kilograms
- Fifteen years for substance weighing more than 20 kilograms
- Twenty years for substance weighing more than 40 kilograms
- Twenty-five years for substance weighing more than 80 kg
- A prior conviction for a felony drug offense will result in an additional and consecutive three-year term for every prior conviction
- Selling or furnishing drugs to certain people, including pregnant women, a person in drug, or mental health treatment, or a person with a previous violent felony conviction will lead to the harshest possible jail or prison terms
- Involving a minor in the transportation or sale of a controlled substance will result in a sentence of between three and nine years in prison, and an additional one or two years, if the drugs were cocaine, heroin, or cocaine base and the activity, took place within 1000 feet of a school, worship place or another facility where minors are typically present. If the minor is at least four years younger than you are, you face a separate and additional one, two, or three-year sentence at the state prison.
Operating or Maintaining a Drug House
Maintaining any place to use for the unlawful sale or giving away a controlled substance is a violation of HS 11366. Some of the elements of maintaining or operating a drug house include:
- You open or maintain a place,
- For use in the sale, giving away, or allowing people to take a controlled substance repeatedly or continuously.
Operating a drug house in California is a wobbler. When convicted as a misdemeanor, the penalties include up to a year in county jail and a maximum of $1,000 in fines.
The penalties for a felony conviction, on the other hand, include a maximum of three years in state prison and up to $10,000 in fines.
Possession of a Controlled Substance While Armed
It is a crime under HS 11370.1 to possess any amount of cocaine, meth, heroin, PCP, or an analog of these drugs while armed with a loaded and operable firearm. The elements that the prosecution must prove to secure a conviction under this statute include:
- You possessed a controlled substance
- You knew of the presence of that substance,
- You knew of its nature as a controlled substance,
- The substance was one of these; cocaine, heroin, meth, PCP, cocaine base, or
- The controlled substance was in a usable quantity,
- While in possession of the controlled substance, you also have a loaded and operable firearm for offensive or defensive use
- You were aware of the presence and purpose of the firearm
A loaded firearm is one whose shell or cartridge is in position for firing. For instance, if you have an unloaded gun and use it to intimidate people while possessing drugs, you will not be guilty of possession while armed.
Possessing a controlled substance while armed is a serious felony with penalties of up to four years in state prison and up to $10,000 in fines. The judge might sentence you to felony probation, depending on the case and your criminal history.
A conviction for possessing a controlled substance while armed will result in a lifetime ban on owning or possessing a firearm.
Prescribing a Controlled Substance Without Treatment
Licensed medical practitioners who prescribe or administer a controlled substance to a person without treating the person for a legitimate medical condition are guilty of violating HS 11154 (a).
The prosecution can charge prescribing a controlled substance without a prescription as a misdemeanor or felony, depending on the circumstances.
The penalties for a misdemeanor charge include up to a year in county jail and a maximum fine of $20,000. The penalties for a felony include a minimum of 16 months and a maximum of three years in county jail.
Find a Drugs Crimes Defense Attorney Near Me
California drug laws are wide and varied. The prosecution could bring charges for different offenses, sometimes bundling them to bring multiple charges against you. Regardless, work with a criminal attorney who understands drug laws and defense. California Criminal Lawyer Group has worked with defendants charged with drug crimes and helped them fight these charges. Our attorneys can help you deal with issues that arise in drug cases, such as illegal searches and seizures, planted evidence, and entrapment. Book your free consultation by calling 714-766-0965.