The law is strict when it comes to drug crimes in California. When you face charges for possessing controlled substances for sale, your rights, future reputations, freedom, life, and finances can be significantly affected. Do not take the risk of fighting the charges alone when charged with the charges. Seek guidance, protection, advice, and representation from a criminal defense attorney.
At California Criminal Lawyer Group, our law firm consists of highly rated, aggressive, and experienced criminal defense attorneys dedicated to providing and serving legal solutions. We have a track record of defending clients facing drug crime charges. We use numerous defenses to fight the charges, including insufficient evidence, police entrapment, and innocence. Therefore ensure you seek legal advice from our highly rated criminal defense attorney immediately after the law enforcement officers arrest you.
The Legal Meaning of Possession of Controlled Substance for Sale
California health and safety code 11351 outlines the crime of possessing controlled substances for sale. The law disallows the possession of controlled substances for sale. Controlled substances involve chemicals or drugs whose possession, the controlled substance act to regulate usage or manufacturing. The following are examples of controlled substances in California:
- OpiateGamma-hydroxybutyric acid
- Specific hallucinogenic substances
The law also disallows the possession or purchasing of prescription drugs intended to sell. Examples of these drugs are codeine and Vicodin. When the law enforcement officers arrest you for possessing these drugs, you want to speak with your criminal defense attorney as soon as possible. The attorney will help you develop a solid defense to fight your charges.
Elements of Possession Controlled Substance for Sale
Before the court finds you guilty of possessing a controlled substance for sale, they must prove the elements of the crime. Otherwise, the court will not convict you. The following are the elements of the crime that the prosecutor must prove for you to face conviction.
You Owned or Possessed the Controlled Substance
Having the drug means you had direct and immediate control. As per the California HSC 11350, the prosecutor must prove you possessed the drug when the law enforcement officers arrested you. But possession does not only imply holding or touching the drug. It might apply when the police discover the drug in your car or house. Possession of a controlled substance takes place in several forms. Drug possession can take place in three forms as follows:
Actual possession is the common type of drug possession in California. The act involves the law enforcement officers finding you holding the drug. For example, the officers discovered the drug in your backpack or pocket.
In this case, law enforcement officers can accuse you of possessing the drug when they discover it in a place you can easily access. These areas may include a desk, locker, or your house. But the prosecutor must provide evidence to demonstrate the drug was under your control, meaning you could easily retrieve the drug into actual or physical possession.
Joint possession involves actual and constructive possession in which two or more people can face charges of possessing the alleged drug. When two or more people share a place where the police find the drug, the law enforcement officers can accuse you of joint possession. Also, the police may charge a group of people who contribute money to purchase the alleged drug.
What Factors Prove Intent to Sell the Drug?
You might find it hectic to prove intent. Possession of the drug does not always mean you want to sell it. Usually, the prosecution team works with expert witnesses to offer their opinions about the intent to sell the drug. Based on the nature and the facts surrounding your case, the following factors may be critical indicators of an intention to sell the drug. The judge considers these factors to determine whether you intended to sell the drug.
The quantity of the Drug
When you possess or own more than the required narcotic, the prosecution may conclude you possessed the drug intending to sell it. In many cases, the users of the controlled substances have the purpose of keeping the drug. So, unless you have a commercial operation outside your warehouse, keeping large quantities of the alleged drug is proof of intent to sell it.
Existence of Drug Paraphernalia
Under California HS 11364, possession of drug paraphernalia is a criminal offense. Drug paraphernalia involves the presence of pipes, syringes, and instruments used for consumption, ingestion, or injection of the alleged drug. Although drug paraphernalia indicates the intent to sell the drug, sometimes the police may charge you with selling a drug when you possess the following tools or devices:
- Weighing scales
- Measuring instruments
- Tools that dilute, separate, or pack drugs.
You Were Drug
When the cops find you drunk during the arrest, they have evidence to claim you possessed the drug for personal use. Nevertheless, many drug dealers in California are users. So, you could face charges when the law enforcement officers find you drunk during the arrest.
How You Packed the Drug
Usually, in many cases involving the violation of HSC 11351, the prosecutor considers how you packed the drug in determining your case. For example, if the police find the drug packed in several separate balloons, baggies, bindles, or bundles, they can accuse you of possessing the controlled substance with the intent to sell it.
You Had Knowledge About the Existence of the Drug
When the prosecutor finds it easy to establish you knew the substance you possessed was controlled, you can face charges for PC 11351. The worst thing is that it is not the prosecutor's work to prove you knew about the substance you possessed.
You Possessed Large Amounts of the Alleged Drug
The court considers the controlled substance usable when large quantities are discovered. Note the amount must differ from traces and residue since there isn’t a way they can violate California HSC 11350. Again, the court can consider the quantity usable if it can affect your judgment.
The Legal Penalties for Possession of Controlled Substance for Sale
Under California HSC 11351, you can face conviction for violating the statute based on numerous factors. Violation of this law may attract heavy fines, imprisonment, or probation. The punishments vary according to the facts surrounding your case and your previous conviction, among other elements. Under prop 47, you can face misdemeanor charges for drug possession. The proposition permits you to petition for resentencing. But the petition is invalid if the court convicted you of murder and sex offenses like rape. Drug possession in California is considered a felony charge. Therefore, you risk facing the penalties below:
- Two or four years imprisonment in a county jail
- Probation for 12 months in a county jail
- A fine of not more than $20,000
- Community service and drug counseling programs
The Terms of the Probation
When the court decides to place you under probation, they inflict certain conditions of the probation for you to follow. The following are the common conditions of probation imposed by the court:
- Random drug testing
- Avoiding any violations of the law
- Visiting your probation expert regularly
If you are an immigrant and face charges for drug possession in California, the court can decide to deport you. Therefore if this is your case, ensure you speak with a defense lawyer as soon as possible. The lawyer will help you convince the court to reduce the charge and skip the deportation charges.
Drug Diversion Program
Under the California PC 1000 and prop 36, the law allows you when charged with non-violent crimes, to serve your sentence under a drug treatment program. After completing the drug diversion program, the court dismisses the charges. But not every person qualifies for the drug diversion program. Ensure you speak with your attorney to help you know whether you are eligible for the drug diversion program. The program does not, however, apply to drug sale offenses.
Therefore your defense attorney can challenge the court to reduce your charges to simple possession. Remember, the prosecutor cannot accuse you of selling controlled substances when you do not possess them. After the court grants you the reduced charge, you can pursue the drug diversion program.
Legal Defenses For Possession of Controlled Substance
Facing charges for possession of a controlled substance may be stressful. If you or your loved one faces a conviction for the crime, you want to hire an attorney with many years of experience to represent you.
An attorney may use various legal defenses to have your charges dismissed or reduced. Below are fruitful defenses a skilled attorney may use to defend you:
Lack of Control Or Possession
The prosecutor wants to prove you had controlled substances to face conviction. The possession may be constructive, joint, and actual. Actual possession means the substance was found in your person. Constructive possession is when the substance is found in an area you exercise control.
Your defense attorney may argue you did not have control of the drug. For instance, you are at your friend's home watching a game together while sitting on the couch. The police raid your friend's house and find cocaine hidden beneath the coach's cushions. Although you were sitting in the coach, you did not have control over the drugs and therefore cannot face conviction.
Temporary Possession Of the drugs
California JSC11351 allows temporary possession of drugs if the intention of possession is legitimate. If you can prove that you owned the drugs for a transitory period. The intention of possessing the drugs was towards destroying or disposing of the controlled substance. Again, you want to prove you did not try obstructing the police from performing their search, For instance, by flushing it when the law enforcement officers entered your house. For the defense to be successful, you want to prove the above elements.
Lack of Knowledge
To face conviction for possession of a controlled substance, you ought to have full knowledge that you possessed the substance and you knew it was a controlled substance. If you did not know the drug is a controlled substance, you might use lack of knowledge as a valid defense. For the defense to work for you, you must not have a drug-related crime in the past, and you must consent to take a drug test with the police during the arrest. Again, the prosecution wants to prove you knew the presence of the drug. If you lack knowledge about the presence of drugs, you cannot face conviction for the crime.
No Intent To Sell
To face charges for possession of a controlled substance, the prosecutor wants to prove your intent to sell the controlled substances. A judge can clear you from the claim if you prove you possessed substance for personal use and not for sale. Your charges will be reduced as it would be difficult for the prosecutor to prove your intent to sell.
The fourth amendment protects you from unlawful searches by law enforcement officers. The law enforcement officers want to read the Miranda rights and have a search warrant. Again, the officers want to search within the latitude of the search warrant. However, if the officers acquire evidence unlawfully or when they don't issue a search warrant, the defense may work for you. Your defense attorney wants to prove to the court that the police obtained the evidence unlawfully. The judge may reduce the charges significantly or have them dismissed.
You may have obtained the drugs from a licensed doctor in California as a prescription. You would likely have a good defense if you had a legitimate prescription. In this case, the burden of proof lies on the prosecution since they want to prove your prescription is not valid.
Your defense lawyer may argue you had a legitimate prescription if you have an illness managed by a controlled substance. The defense depends on the amount of controlled substance you possess. If it is according to your medical requirements, the defense will work to have your charges dismissed.
Crimes Charged Alongside HSC 11351
Many offenses relate to HSC 11351. The offenses share similar elements and sentencing options. The court can sometimes charge you with both crimes or reduce the charge for possessing the controlled substance for sale to another related crime, as discussed below.
Possession of Marijuana for Sale – HSC 11359
Under California HSC 11359, it is illegal to possess marijuana with the intent to sell it. When you own large amounts of marijuana to sell, and the police prosecution team has substantial evidence to prove you possessed the drug to sell, you can face conviction for the crime.
The intent to sell the drug can be established by circumstantial evidence, what you say, and an indicator of intention to sell the drug. For example, if the alleged marijuana is packed and you have many missed calls, the police can charge you with possession of marijuana for sale.
The Legal Penalties
When charged with a charge for possession of marijuana to sell, you will face harsh penalties, including heavy fines and extensive jail terms. If you are below the age of 18 and charged with the charge, you face the listed penalties:
- When a first-time offender, you will engage in drug counseling and education, and community service for three months
- A second-time offender will serve a ten-hour counseling and education program and two months of community service
Alternatively, you will face a misdemeanor charge when the offender is over 18 years old. The penalties for the misdemeanor charges include:
- A fine not exceeding $500
- A jail term for six months
When you have a previous conviction for possession or sale of marijuana to a person aged below 18 years, you risk facing a felony charge. The charge includes 16 months, 2, or 3 years imprisonment. So, when you find yourself in a similar situation, you want to seek legal help from a well-skilled criminal defense attorney to help you fight the charge.
The Legal Defenses
The effect of the drug conviction can affect your future life. But with the help of a compassionate attorney, you stand a chance to fight the charge or lessen the impact of the conviction. You have to note that by negotiating for a reduced penalty or charge. Every criminal case is unique and varies based on the nature and the facts surrounding your arrest. Your attorney can employ the following defense strategies to fight the charge:
- You did not have the intent to commit the crime.
- The alleged substance is not marijuana.
- You are a victim of illegal seizures and searches.
- The police violated your Miranda rights during the arrest.
Manufacturing Controlled Substances – HSC 11379
Under HSC 11379, the law outlines the manufacturing of controlled substances. You violate the statute when the court finds you guilty of production, converting, compounding, preparing, or processing the controlled substance. The prosecutor has the task of proving the crime elements. The elements include:
- You derived, compounded, processed, prepared, or produced a controlled substance.
- You were aware the substance you are making, producing, processing, or manufacturing is a controlled substance.
The Legal Penalties for Violation of HSC 11379.6
When you violate this statute, you face severe penalties and punishments. The penalties include:
- Fines of up to $50,000
- A state jail term of 7 years
The Legal Defenses
Although the charges for violating HSC 11379.6 are severe, you have an opportunity to convince the judge about your innocence. With a well-skilled defense attorney, you have the opportunity to fight the charge. The attorney will listen to your case, collect sufficient evidence, and develop a strong defense strategy to fight the charges. Also, the attorney will try to convince the court to reduce the charge to a less severe one. The attorney can use the following defenses when fighting the charges.
- Police entrapment
- Victim of unlawful seizure and searches
- Mistaken facts
Sale of Controlled Substance
California HSC 11352 makes it a crime to transport, import, sell, administer, furnish or give someone a controlled substance. California law aims at people engaged in illegal drug trafficking and transactions.
A controlled substance refers to substances that are unlawful to sell, including cocaine, heroin, opiates, hydrocodone, codeine, and opiate derivatives. Transportation means carrying or moving the controlled substance from one location to another. You will still face conviction even if you transport for a short distance.
Penalties For Selling or Transporting Drugs
In California, the sale or transportation of a controlled substance is a felony. When you violate HS11352, the penalties include imprisonment from three to five years in jail. However, the punishments are enhanced if you transport the drugs from California to other non-contiguous counties like Santa Clara. You face three, six, or nine years imprisonment in prison. Again, you may face the following additional penalties:
- You will have a permanent drug offender record.
- Suspension of your driver's license after a conviction.
- Revocation of immigration status.
- You may not acquire admission to school or university.
- You are banned from owning a gun for ten years.
The Legal Defenses
The following are legal defenses an attorney may use to fight against your charges for possessing and transporting a controlled substance. The defenses include:
- You have a valid prescription for the controlled substance.
- lack of possession of the substance
- You lacked knowledge about the presence of the controlled substance
- Your attorney may argue the police unlawfully obtained the evidence.
- The police entrapped you
- You did not have the requisite intent
Allegations for The possession of controlled substances for sale in California can attract severe penalties. That’s why you want to work closely with a criminal defense attorney with many years of experience. If the police arrest you, our attorneys are ready to assist you.
We have defended our clients facing drug crime charges at California Criminal Lawyer Group for decades. When you visit us, you will meet knowledgeable and experienced attorneys ready to inform you of your rights and guide you on the best available option for your case. Call us at 714-766-0965, and we will start preparing your case immediately.