HS 11350 – California Possession of a Controlled Substance
Possessing controlled substances without a prescription is a crime in California. That crime became less serious after the passage of Proposition 47 but a conviction still has significant consequences.
What the Government Must Prove
The possession of a controlled substance violates California Health and Safety Code section 11350 under certain circumstances. To obtain a conviction, the government must prove beyond a reasonable doubt that the accused person:
- unlawfully possessed a controlled substance;
- knew of its presence;
- knew that was a controlled substance; and
- possessed a usable amount.
A controlled substance is a regulated drug that has been placed on a schedule of controlled substances by State of California. Cocaine and heroin are examples of controlled substances. Section 11350 applies to many drugs while other drug possession offenses are criminalized in other sections of the Health and Safety Code. Marijuana is governed by a different set of laws.
Unlawful Possession Of a Controlled Substance
Some controlled substances, like oxycodone, can be legally possessed with a valid prescription. Others, like heroin, can never be possessed lawfully. Section 11350 applies only to drugs that are possessed without lawful authority. In the case of a prescription drug, that usually means that you had no prescription for the drug you possessed.
The phrase “knew of its presence” protects people who possess a drug inadvertently. If someone left cocaine in your car and you did not know it was there, you did not violate section 11350. If you know that a substance is in your possession but do not know it is a controlled substance, you are not violating the law.
On the other hand, you do not need to know the specific nature of the controlled substance. If you know the drug is a controlled substance but believe it to be cocaine and it turns out to be heroin, you have still violated section 11350.
The requirement that possession must be of a “usable amount” is intended to protect you from prosecution if you are found with a baggie that has trace amounts of the drug. “Usable” does not mean “enough to get you high” but it does mean “enough to use.”
Section 11350 applies to simple possession. Possession for sale is a different crime. Possession for sale under HS 11351 was not affected by Proposition 47.
Section 11350 is intended to criminalize possession for personal use, although the government is not required to prove that you intended to use the drug. It is enough to prove that you possessed it.
There are three ways to possess a controlled substance. The way in which you are accused of possessing the drug may have an impact on the defenses you can raise in your case.
Actual possession means that you either had the drug on your person or that you exercised direct physical control of the drug. For instance, if you place the drug in the glove compartment of a car you are driving, you are in actual possession of the drug.
Constructive possession means that you had the right to control the drug even if it was not in your actual possession. For example, if you gave the drug to a friend to hold for you and were entitled to have the drug returned upon request, you constructively possessed the drug.
Joint possession means that the drug was possessed by two or more people at the same time. For example, if you and your friend pool your money to buy a quantity of drugs that you intend to share, you are jointly possessing those drugs.
Penalties for Possession of a Controlled Substance
Prior the passage of Proposition 47, a violation of section 11350 was known as a “wobbler.” That meant that a prosecutor had discretion to charge the crime as a misdemeanor or as a felony. Felony convictions carried the possibility of a prison sentence.
After November 4, 2014, Proposition 47 made the possession of controlled substance a misdemeanor. The amount of jail time for this drug crime is now one year.
The revision of the law made by Proposition 47 applies to controlled substances criminalized by section 11350 and to other controlled substances, including methamphetamine, that are criminalized by other sections of California law. The only exceptions apply to possession by certain offenders with past convictions for a narrow range of violent offenses and to possession by people who are required to register as sex offenders.
Proposition 47 gives individuals accused of possessing illicit drugs more options than they had under the prior law. Misdemeanor charges allow those who are accused of the crime to seek drug diversion as an alternative to a jail sentence or probation. Since the purpose of Proposition 47 is to channel persons who possess drugs into treatment rather than prison, prosecutors and courts should now be more receptive to the argument that treatment, not punishment, is the best outcome.
Any drug conviction carries the potential for additional consequences. Drug convictions can make it more difficult to obtain certain jobs, to enlist in the military, or to obtain professional licenses and permits. The change in the law is helpful but it does not mean that a California drug charge should not be taken seriously. You should always contact an attorney to find out whether a conviction can be avoided in your case.
Defenses to the Charge
- I had a valid prescription (or the prosecution cannot prove beyond a reasonable doubt that I did not have a prescription).
- The drugs were planted by someone with a grudge against me. I did not know they were there.
- The drugs were left in my house or car by someone else. I did not know they were there.
- I did not know that the package someone gave me contained a controlled substance.
- I had no drugs on my person. The witness who claims the drugs were mine is lying to protect himself or someone else.
- I was trying to buy a controlled substance but the sale was never completed so I did not actually possess it.
- I was near some people who were in possession of controlled substances but I had no right to use or control the drugs.
- The substance was not a controlled substance.
- Whether or not I committed the crime, the evidence cannot be used against me because it was obtained by means of an illegal search or seizure.
These defenses and others can be raised in an appropriate case by an experienced criminal defense attorney to help you avoid a conviction or to put you in a better position to bargain for a reasonable outcome. Any time you are arrested for possession of a controlled substance, you should talk to a lawyer about the defenses that can be raised in your case. Ask for a free case evaluation to help you understand your options.