Drugs are used for various reasons, including to feel good and to perform better. However, dependence on drugs has grave consequences, which is why there are laws in place to regulate drug possession and use. In the state of California, we have laws governing the use of controlled drugs. Breaking these rules could result in either a misdemeanor or a felony.
Penalties resulting from the possession of controlled drugs could be severe, and they come with such consequences as imprisonment, loss of one's driver's license, and loss of one's rights to vote. If, therefore, you have been arrested or are under investigation for any drug-related offense, get in touch with a competent criminal attorney. The Orange County Criminal Lawyer has excellent experience in handling drug crimes throughout Orange County.
Legal Definition of California Possession of a Controlled Substance
The state of California has very stringent laws against drug possession. Generally, there are two offenses under the ownership of illegal drugs:
- Simple possession
- Possession for sale
The state's Health & Safety laws separate crimes that are related to the use of controlled drugs from offenses related to the use of marijuana
California laws on possession of controlled drugs are under Section 11350 of the state Health & Safety Code. According to this law, it is illegal for any person to have a particular type of controlled drug without a legal prescription. To understand this offense better, let us look at the elements of the crime. They are the facts that the prosecutor must demonstrate in court for a defendant to be found guilty of the offense:
- That the person had a controlled drug in their possession
- That the defendant didn’t have a legal prescription for the drug in his/her possession
- That the person was well aware of the presence of the substance
- That the defendant was also well aware of the nature of the substance as an illegal drug
- That the amount of drug in his/her possession was usable
For the purposes of this law, a controlled drug/substance is a type of drug whose production, the government regulates the control and use per the U.S Controlled Substances Laws. Some of those controlled drugs that have been covered by this section of the law include
This law also affects the possession and use of prescription drugs like:
- Hydrocodone (Vicodin),
- Oxycodone (Oxycontin)
It is worth noting that this law does not cover stimulants and marijuana. The California law that regulates the possession of marijuana is Section 11357 of the California Health & Safety Code. Laws against use and possession of stimulants such as methamphetamines are under Section 11377 of the same Penal Code.
To understand this law even better, let us look at the meaning of essential terms and phrases in detail:
Possession: Possession of a controlled substance means that a person has power over the drug. Control can either be in person or through a different person. Note that a person doesn’t have to have the drug in their hands or clothes to possess them. You could still be in possession of drugs if they are in your bag, locker, or even in the trunk of your car. If you have kept the drugs in a storage unit or closet, you could still face charges for possession.
However, only agreeing to purchase drugs does not amount to possession.
Knowledge: It is another element that must be satisfied for a person to be found guilty of health & safety Code 11350. Awareness of both the presence of the illegal drug and the point that the drug in his/her possession is a controlled drug is needed for the defendant to be found guilty of possession. However, the prosecutor doesn’t need to demonstrate that the offender was aware of the specific type of drug that was in his/her possession. All that is required is proof that the defendant knew that the drug was a type of a controlled substance.
Usable amount: When something is in the proper amount, its quantity must be enough to be useful to the person. A controlled drug in a reasonable amount is, therefore, that which can bring effects on the user. What this means is that small traces of drugs are not practical amounts and will, therefore, not be enough to convict the person for possession of a controlled drug. The drug should be in the right quantities or strengths to cause intoxication to the user.
Analog/equivalent of an illegal substance: This, too, is a statute that applies when it comes to possession of controlled drugs. Under this statute, it is illegal for a person to be in possession of an equivalent of a controlled drug. An analog, in this case, refers to a substance that has:
- A similar chemical structure to that of the controlled drug
- A substantially identical effect on the nervous system or an impact that is greater than that of the controlled substance
Penalties for California HS 11350
Most drug-related crimes in the state of California are those charged with possession of illegal substances. Because of the nature of these offenses, strict penalties are there for those found guilty of the crime. In most instances, simple possession of dangerous substances is a misdemeanor. As a misdemeanor, the following are the likely penalties the offender might get:
- Jail term for a maximum of one year
- A fine of not more than $1000
In other instances, the court prosecutes possession of drugs as a felony. Some of these instances are when the defendant has a previous conviction of a serious felony such as a conviction of a sex offense. If the defendant gets a felony conviction, they could face jail time for a maximum of three years.
In some of these cases, the judge may decide to send the defendant to a drug treatment/diversion program. The program is meant to help people who are facing charges for non-violent drug-related offenses. The diversion program allows them to serve their prison term in a treatment center instead of in prison or jail.
The laws regarding California drug diversion programs are under Section 1000 of the California Penal Code. The law advocates for education and treatment for non-violent drug offenders instead of sending them to prison or jail. Upon completion of the drug treatment, the law allows the court to dismiss the charges for these offenders. Some of the controlled drugs that have been covered by this law include:
- Gamma-hydroxybutyric acid ("GHB")
- Ecstasy ("X")
- Ketamine ("Special K")
- Some types of hallucinogenic substances like phencyclidine ("PCP")
- Prescription opioids including hydrocodone ("Vicodin") and codeine
Generally, the nature of the substance is not always the most important thing when the court is deciding whether or not to send the offender to a drug treatment program. The following are the main considerations:
- Whether or not the possession of a controlled substance was for personal use
- Whether or not the court believes that the defendant will benefit from the program
Other Consequences of HS 11350 Conviction
Time in jail and fines are not the only consequences for a conviction of possession of dangerous substances in California. Such a conviction will have grave consequences on both your social and professional life.
In addition to that, a conviction of being found in possession of a controlled drug might have serious immigration consequences. The Immigration Law in the United States does not permit any such record for anyone that is coming to stay or live in the country. If you are already living in the U.S and you are a non-citizen, getting convicted of such an offense could cause you to get deported. Convictions of most drug-related crimes make a migrant inadmissible into the country. What this means is that depending on the facts of your case, a violation of California HS Code 11350 could have severe consequences on immigration.
Another critical consequence you should think of if you are facing a conviction for a drug-related offense is whether or not the court will expunge that conviction from your criminal record. According to Section 1203.4 of the California Penal Code, expungement is crucial as it releases the person from practically all the disabilities and penalties that come out of a conviction. According to this law, an expungement can happen for any felony or misdemeanor offense if the offender meets the following conditions:
- That the defendant successfully completes probation. It could either be a misdemeanor or felony probation, depending on the nature of the underlying conviction
- That the defendant is not facing another criminal charge, in jail or on probation
It means that once the defendant successfully completes their probation, the treatment program, or has served their jail sentence for the offense, they can have their conviction removed from their criminal record.
The other effect a California HS 11350 conviction will have on the defendant will be on their gun rights. If you own a gun or are planning to own one in the future, a drug-related conviction could affect your rights to own one. California law does not permit those who have been convicted of felony offenses to possess or acquire a gun. If you are unlucky to get a felony conviction for possessing dangerous substances, you will lose your state's right to own a firearm.
Legal Defenses Against Charges for California Possession of Controlled Drugs
For the above and many other consequences of getting convicted for possession, it is essential to plan a good defense against your charges. California law allows people facing any kind of criminal offenses to seek a legal defense against their charges for a fair ruling by the court. The first thing you should do after an arrest is to get yourself a competent criminal lawyer. Fortunately, there are several defense strategies that your attorney can use on your defense. If successful, the court may be compelled to drop your charges or to reduce them to more lenient charges.
Some of these strategies include:
There was no possession
As mentioned above, ownership of the drug is an element of this offense that must be satisfied for an offender to be found guilty of California HS 11350. The prosecutor will be required to provide proof that the illegal drugs were in your possession at the time of the arrest. Both direct and indirect ownership applies in this case, and this means that the drugs could have been physically on you, in your house, locker, or closet belonging to you. If no such proof exists, your attorney could use that to refute the claims that you were in possession of the dangerous substance. If the court accepts your attorney's argument, your charges could be reduced or dropped altogether.
You had a legal prescription
As mentioned above, some of those drugs that are controlled by law in the country are prescription drugs used in the treatment of various diseases and conditions. What this means is that a person can be found in possession of a dangerous drug, while in the real sense, the drug is in their possession legally. If you had a written prescription for the drugs, and the amount of drugs found in your possession matches those that were prescribed, you may not be guilty of possession.
However, the prescription must have been from a licensed physician, dentist, veterinarian, or podiatrist. Again, if the order is not legal, or the person who wrote it is not authorized, you will face full charges of drug possession.
Lack of knowledge
Knowledge is another fact that the prosecutor must prove in court for the offender to be found guilty of possession. Knowledge is not easy to show, which means that your attorney could take advantage of that to have your charges dropped. If your attorney convinces the court that you were not aware that you had such drugs in your possession, it could acquit you of your charges. The same will happen if he/she convinces the court that you were aware of the presence of those drugs but unaware of the nature of the drugs. It can only mean that another person was guilty of the offense.
Illegal search & seizure
According to the U.S 4th Constitution Amendment, people have a right to freedom from unreasonable search & seizure by law enforcement officers. If the police obtain any evidence through illegal and unreasonable search & seizure, such evidence may not be usable in a criminal court. It could, therefore, not be used to convict the offender. What happens in most cases involving drugs is that officers are forced to do a search and seizure to capture the drugs and arrest the offenders. Officers need a search warrant for this, and in most cases, these warranties limit them as to how many searches they can conduct.
Many criminal defense attorneys take advantage of this to render any evidence gathered through search & seizure inadmissible in court. If your arrest happened through the same means, this defense could help you have your charges dropped or reduced.
FAQs on California Laws on Possession of Controlled Drugs
California laws against the possession of illegal substances are not as straightforward as they seem. Sometimes they can be very confusing, especially for first-time offenders. An experienced attorney can come in to help you understand your position and options if you have been arrested for drug possession. Here are some of the frequently asked questions about California HS 11350 to help you understand this law even better:
Can a person be charged with possessing heroin under California HS 11350 even if they did not intend to sell or use it? Heroin is among the drugs that this law has covered. It means that it is possible to be charged under California Health & Safety Code 11350, even if you did not plan to sell or use the drug. The main issues here are the fact that you had the drug, you knew of the presence of that drug, and you were well aware of the nature of the drug in your possession. What you intended to use the drug for is not of importance to the court, as long as the prosecutor proves all the elements of this offense.
Can a person still be charged if they were unaware of the drug's presence? If it is true that you were unaware of the drug's existence, the court will not find you guilty of possession under this law. If, for instance, you had spent the night at a friend's house, the police raided the place in your presence, only to find cocaine. They, later on, they arrested you for possession of cocaine. The judge may acquit you of the charges if he/she realizes that there is a chance that you were not aware of the presence of drugs in the house. After all, it was your friend's house, and you were there only for the night.
Can a person still face possession charges if the drugs were found in their car and not on their person? Yes. Remember that possession does not always mean physical possession of the substances. Indirect ownership will still count if the location of the drugs could be directly linked to you. It means that an offender does not have to have touched the drug to be guilty of possession. The court allows constructive possession as well, mainly if they are found in a place where the offender has direct control. For that reason, you could be charged if the drugs are found in your car, locker, office, bedroom, or any other such place.
California Possession of Controlled Drugs and Related Offenses
There are offenses under California laws that are convicted in place of or together with the offense of possessing dangerous drugs. These are, for instance:
Possessing a controlled drug for sale as provided under Section 11351 of the California Health & Safety Code:
It is a part of this offense that makes it a felony offense to possess specific types of controlled drugs to sell them. The offense is quite similar to California HS 11350, only that in the latter, the intention to sell the substance is not a requirement for conviction. If the court is convinced that you had plans to sell off the drugs, you will not be convicted for possessing illegal drugs but for possessing with the intent to sell. It means that you will automatically face a felony conviction and not a misdemeanor.
Selling and transporting dangerous substances as provided under California Health & Safety Laws Code 11352:
Again, this is an offense that is very closely related to California HS 11350. This law makes it illegal for anyone to do the following:
- To sell controlled drugs
- To transport any controlled drugs to sell them
- To administer or furnish controlled substances to another person/other people
- To give the controlled drugs away
- To offer to do any of the acts mentioned above
It is a much broader law when compared to California HS 11350 and HS 11351. Transporting drugs, in this case, means moving them from one location to another. The offense will still hold even if the distance traveled is very short. It means that you can still be charged with the crime even if you move drugs from one home to the other by foot.
Operating under the effect of a controlled substance as provided under Section 11550 of California Health & Safety Code:
This law makes it illegal for any person to operate under the effect of a controlled substance. Unlike other offenses listed above, this law does not require proof of possession. The fact that you are under the effect of a dangerous drug is enough to warrant a conviction.
Find an Orange County Criminal Lawyer near Me
Any offense in California that is related to dangerous drugs is serious, which means serious penalties upon conviction. That is why you need the best legal help you can get. At Orange County Criminal Lawyer, we have an excellent team of attorneys that can take you through the legal process and ensure that you get a fair ruling. Call us at 714-262-4833 if you are in Orange County, and let us help you.