California’s Two Drug Possession Laws
California Health & Safety Code 11350 HS makes it a crime to possess certain controlled substances without a valid prescription. A similar law, California Health & Safety Code 11377 HS, criminalizes the possession of methamphetamine, MDMA (Ecstasy), and some anabolic steroids, among other drugs.
“Possession for sale” is a more serious crime. The misdemeanor of simple possession applies to possession for personal use. In some cases, the police or prosecution will decide that the quantity possessed was too large for personal use and will treat the offense as possession for sale. In those cases, evidence that the accused has a serious drug habit might persuade a prosecutor or jury that the drugs were purchased in bulk to save money or to avoid the risk of making repeated buys.
Common Defenses for Drug Possession Charges in Orange County
Drug possession in Orange County could be charged as a state or federal crime. It is important to remember that the federal government has extremely tough drug sentencing guidelines. In a drug possession case, the burden of proof is on the prosecution. This means that it is the prosecutor’s job to prove that you had the drugs in your possession. Here are some of the common defenses in drug possession charges, which are often most effective:
- Unlawful search and seizure: Under the Fourth Amendment to the U.S. Constitution, the right to due process is guaranteed to all and this includes lawful search and seizure before an arrest. In drug possession cases, in particular, search and seizure issues are extremely common. For example, when illicit drugs are found in plain view, it is legal for police to seize them and use them as evidence. However, when officers enter a home or look into your vehicle without permission, any evidence obtained in such a manner cannot be used in court. If your Fourth Amendment rights were violated, then the drugs obtained in such a manner, even if illicit, cannot be used as evidence and the charges must be dismissed.
- Ownership of the drugs: If the drugs confiscated during an investigation did not belong to you, then you cannot face drug possession charges. For example, if police found drugs in your apartment, but if they belonged to your roommate or a visitor, you should not be facing drug possession charges.
- Lab proof: Prosecutors are required under the law to prove that the substance obtained is actually a drug. This is typically done by sending the substance to a crime lab for analysis. The crime lab analyst must then testify during the trial that the substance that was obtained during the investigation was actually an illicit drug.
- Entrapment: Law enforcement officials have the authority to set up sting operations. However, this can very quickly turn into entrapment if the officers lure a person into committing a crime that he or she otherwise would not have committed. For example, if an informant or some other party, pressures an individual into taking drugs or passing them on to a third party, that could be considered as entrapment. In such cases, the charges must be dismissed.
- Marijuana: Marijuana – whether recreational or medical – is legal in California. The only exception may be when you are on federal property such as a national park. An experienced Orange County drug possession lawyer will be able to fight for your rights and defend you against any marijuana-related charges.
Will I Go To Jail for Simple Possession in Orange County?
The laws for simple possession can vary from one state to the next, as can the punishments for the crime. Those who are charged with simple possession will find hat the punishments tend to be far less severe than those who are charged with possession with the intent to sell. In addition, in the state of California, the California Health and Safety Code has separated offenses regarding controlled substances from marijuana-related offenses. Marijuana is legal in California, and the laws have changed in recent years. Still, a person can be charged with simple possession of marijuana in some cases.
California Simple Possession Penalties & How Does Marijuana Factor?
In CA, the penalties for possession of drugs will range based on a number of factors including the type of drug, the amount of the drug, and the reason that the person had possession of the drug. The adoption of these laws in 2014 made a number of drug possession offenses misdemeanors rather than felonies.
In 2016, after marijuana was decriminalized in California, the laws changed regarding possession. Those who are 21 and over are allowed to buy and possess marijuana, as well as consume it. They can have up to 28.5 grams of marijuana and eight grams of concentrated marijuana in their private residence. They are also allowed to have it at an establishment that has been licensed to consume marijuana.
However, smoking still remains illegal in certain locations. It is illegal to smoke marijuana anywhere that smoking tobacco is not allowed, in public places, and while driving a vehicle. In addition, it is illegal to possess any marijuana at a school, youth center, or day care center when children are present. Additionally, people in California are allowed to grow up to six plants in their private homes. However, they need to ensure that it is not visible from a public place and that the area is locked.
Those who possess greater than 28.5 grams of marijuana can be fined up to $500 and sent to jail for up to six months. Those who possess marijuana and who are under 18 will need to provide community service and undergo a drug education course. Those who have more than eight grams of concentrated cannabis can receive a fine of up to $500 and/or jail time of up to one year.
Possession of other types of drugs is still illegal. Those who are found in possession of Schedule I, II, III, IV, and V drugs will still be penalized by the law with up to one year in the county jail in California. This is less than the punishments a few years ago when this type of possession could cause a defendant to go to state prison.
Simple Possession Defense Attorney in Orange County
Those who are charged with simple possession may find a number of potential defenses for simple possession that could be used in their face. For example, one of the defenses might be that the drug is a medical necessity for them, and they may have a prescription by a doctor. Someone who has been prescribed a medication that has opiates would be allowed to have those drugs under the law.
Another potential defense would be if the drugs were found during an unlawful search and seizure. There might also be a defense available if there are issues with the lab analysis of the drugs. Additionally, the police did not conduct themselves properly or they tried to entrap the defendant, it could be used as a defense in court.
The nature of the defense being used will depend on the circumstances of the case, which can be difficult to handle alone. Those who are facing court because of a simple possession charge are likely frightened about what is going to happen. Even though the laws in California may be more lenient in many cases than they were in years past, people still do not want to face the prospect of doing any time in jail. Those who are in other states where the penalties for possession, even for marijuana, are much more severe, are going to be worried, as well.
Defending Against Illegal Drug Sale Charges
Section 11352 of California’s Health and Safety Code imposes criminal penalties for the unlawful sale of the following drugs, among others:
The maximum sentence for violating 11352 HS is usually 5 years of imprisonment. That maximum can be increased, however, if the crime involves distribution to a minor or if it occurs in certain places (like playgrounds, schools, and public swimming pools) where minors or vulnerable people are likely to gather. A defendant’s prior record can also affect the maximum sentence.
A similar law, section 11379 of California’s Health and Safety Code, applies to the following drugs, among others:
The maximum sentence for violating 11379 HS is 4 years of imprisonment. The same factors that can increase a sentence under 11352 HS can also increase a sentence for selling drugs that are governed by 11379 HS.
The “sale” of a drug under these laws includes any transfer of possession of the drug, whether money changes hands. It is just as illegal to give the drug away as it is to sell it. “Delivery” and “distribution” are other words that describe a “sale” of drugs under California law.
Transporting a drug to sell it carries the same penalties as selling the drug. “Transporting” just means moving the drug from one place to another. Transporting the drug across more than two counties, however, increases the maximum sentence to 9 years of imprisonment.
Defending Against ‘Possession of Drugs for Sale’ Charges
It is illegal to possess heroin, cocaine, and the other drugs that are included in 11352 HS for the purpose of selling them. The maximum sentence for possessing those drugs for sale is usually 4 years. It is also illegal to possess methamphetamine and the other drugs included in 11379 HS for the purpose of selling them. The maximum sentence for possessing methamphetamine for sale is usually 3 years.
Possession for sale means that the accused possessed the drugs with the intent to sell or distribute them. Possessing drugs with the intention of selling them is governed by California health and safety code 11351.
Prosecutors sometimes try to prove that the accused intended to sell the drugs by introducing evidence of past drug sales or by having witnesses testify to incriminating statements that the accused supposedly made. When that evidence comes from the mouths of drug addicts who have an incentive to lie so that they can get a reduced sentence or protect their dealer, their credibility can be attacked during a trial.
In other cases, prosecutors ask juries to assume the accused intended to sell the drugs because the quantities are larger than a typical user would keep on hand for personal use. In those cases, evidence of a heavy drug habit or a desire to minimize risk or save money by marking one large purchase instead of many small purchases can lead to a “not guilty” verdict.
Orange County, California Drug Dealing Defense Strategies
One defense to a charge of “possession for sale” is that the drugs were possessed for personal use.
Other defenses to charges of selling and possession for sale include:
- The accused did not know about the drugs.
- The accused was hanging out with drug dealers but was not involved in drug dealing.
- The person who accused the defendant of being a drug dealer is making a false accusation.
- The drugs were planted.
- The defendant was entrapped.
- The drugs were seized illegally and cannot be used as evidence.
Other defenses may also be available, depending on the facts of the case. Asserting the right defense can lead to dismissal of the charges, acquittal at trial, or a favorable plea bargain that avoids potentially disastrous consequences.
Selecting the right defense takes knowledge and experience. Asserting that defense successfully takes skill, hard work, and a willingness to fight.
To discuss your case with an experienced Orange County drug possession lawyer who fights for the rights of drug crime defendants, call the Law Office of Randy Collins at (844) 524-4011.
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