Possession of illegal drugs in California can be charged as a misdemeanor or a felony. The prosecutor’s decision depends on several factors like the type of drugs that you’re possessing, the circumstances of your arrest, among other factors.
If you are charged and convicted of a California felony drug crime, you will likely receive a prison sentence. A prison sentence can change the trajectory of your life. This article explains the circumstances that make a drug crime a felony in California.
Drug Classification in California
California has adopted the Federal Controlled Substance Act (CSA), which categorizes drugs into Schedules based on medical value, potential addiction, and abuse. Under this Act, five schedules categorize them from the most dangerous ones to the least harmful ones. Most drugs like morphine, which have medical value but can be addictive, fall between these categories.
Schedule 1 Drugs
Schedule 1 drugs include drugs that have no acceptable medical use in the United States. These drugs put a person at a high risk of addiction. Some of the familiar drugs assigned under this schedule include:
Schedule 2 Drugs
Schedule 2 drugs include drugs that put a person at high risk of addiction. This class includes illegal drugs and prescription drugs. Individuals taking prescription drugs under this schedule should take them as directed by the doctor to reduce the risk of addiction. Some of the common drugs under this schedule include:
Schedule 3 Drugs
Schedule 3 drugs involve drugs that put an individual at a lower risk of addiction than Schedule 1 and 2 drugs. Medical providers usually prescribe schedule 3 drugs for health-related reasons. Common drugs under this schedule include:
- Anabolic steroids
Schedule 4 Drugs
Schedule 4 drugs are often prescribed in medicine but usually have a lower risk of addiction. Some of the familiar drugs under this category include:
Schedule 5 Drugs
Schedule 5 drugs also include generally prescribed medication, which has a lower risk of addiction. Some of the familiar drugs in this schedule include:
- Cough syrup containing codeine
Drugs are also classified according to their chemical makeup and how they interact with your body. These types of classification include the following:
Factors that Lead to Felony Drug Charges in California
Different factors can have you prosecuted with a felony drug charge. These factors are as follows:
The Kind and Amount of the Drug Your Arrested With
The type of drug you possess and its quantity can significantly influence the charges filed against you. For instance, possessing a dangerous controlled substance like cocaine and heroin can automatically lead to a felony drug charge.
You can only be prosecuted with a felony drug crime if the drugs involved are “usable amounts.” This means that the quantity is enough to be used as a controlled substance. Therefore, useless debris or traces are not considered as usable amounts. However, this doesn’t mean that the amount must be enough to intoxicate the user.
Possessing Drugs for Sale
Under California Health and Safety Code 11351, it’s a felony to possess certain controlled substances for sale. This includes drugs like heroin, cocaine, codeine, Vicodin, and OxyContin. Prosecutors must prove that you had or purchased a specific type of drug, knew about its nature as a controlled substance, and you either possessed the drugs intending to sell. You can also be charged with this crime if you purchased the drug to resell them.
Personal possession is distinguished from possession for sale in the following ways:
The Quantity of Controlled Substance
Possessing more drugs than the amount that an “average” person would consume will have the police assume that the narcotics are for sale. However, unless you are running a commercial drug operation in a warehouse, possessing a lot of drugs is not necessarily evidence for possession for sale.
The Packaging of the Drugs
Drugs for sale are packed in numerous separate baggies, bundles, balloons, or other typical packaging ways. If the cops find this sort of packaging, it suggests that you possessed the controlled substance for sale rather than personal use. The police would make the same suggestion if they found lots of baggies or other packaging material while arresting you.
The Absence or Presence of Drug Paraphernalia
Possession of drug paraphernalia or apparatus is a crime by itself and can be associated with drug possession with the intent to sell. Drug paraphernalia includes syringes, pipes, or instruments used to ingest, consume, or inject a drug. Most likely, possessing drug paraphernalia could support claims that the drugs were for personal use, but possessing certain apparatus suggests that you have the intention to sell the drugs. These items include:
- Measuring instruments
- Weighing scales
- Other tools used in diluting, separating, or packaging drugs
Being Under the Influence
Being under the influence does not necessarily mean that you had the intention of selling a particular drug. However, most dealers are also drug users, meaning that the prosecution can use this evidence conclusively.
Sale and Transportation of Particular Controlled Substances
Under California Health and Safety Code 11352, it’s a felony to transport or sell certain controlled substances. Under this statute, transportation means carrying or moving something from one place to another despite how short the distance is. However, you can only be guilty of the transportation of a drug if you intend to sell the drug eventually.
You can also be guilty of transporting drugs if you are found to have transported a usable amount. However, traces or residue don’t count.
Please note, you can still be charged for the sale and transportation of a controlled substance through constructive possession. In constructive possession, you are not involved in touching or handling the drugs but have control over them directly or through another person.
Aggravating Circumstances Related to Drug Crimes
Particular circumstances can have your misdemeanor drug crimes elevated to a felony. These factors are referred to as sentencing enhancement or aggravating circumstances. Prosecutors have the burden to prove these sentencing enhancements beyond a reasonable doubt to impose the additional punishment on the perpetrator. The following aggravating factors can have your misdemeanor drug crime enhanced to a felony:
- Involving threats to bodily harm, violence, bodily harm, or other degrees of viciousness, cruelty, or callousness
- The use of a weapon during the crime
- Using a minor in committing or assisting in commissioning of the drug crime
- Threatening, dissuading, or unlawfully preventing witnesses from participating in testify against him
- Being a repeat offender
- Committing the crime on a school bus, school, or a school bus stop
- Committing the crime on a public swimming pool, building, park, housing unit, or public transport
- Using sophisticated planning and professionalism
- Using your position of power or trust to commit the offense
Consequences of a Felony Drug Charge in California
The effects of a felony drug crime conviction are significant in California. You might end up facing harsh prison sentences and paying a hefty fine. The repercussions go beyond these penalties. Some of the potential implications that come along with a conviction include:
- Losing your right to vote while in custody. However, your right to vote is automatically restored upon completing your sentence, but you would have to register again to be a voter
- Losing the right to serve on a jury
- Losing the right to serve in the military and enjoy veteran’s benefits to some extent
- Facing potential discrimination when seeking employment or housing. Sometimes you might be required to disclose your conviction while running for an office
- Losing your right to own or possess a firearm
- Collection of your DNA to be submitted in the DNA database for future comparison during a crime investigation
- You might be found unfavorable when contesting for custody of your children
- Prevention from receiving financial aid to pay for your university or college
- Deportation or being marked as inadmissible into the United States if you are an immigrant
What You Should Do After Being Prosecuted with a Felony Drug Crime
Regardless of your drug crime charges, a felony drug crime charge can be severe. A felony conviction can lead to severe consequences that would punish you after you’ve served your tune.
To increase the possibility of avoiding these serious consequences, you should take the proper steps immediately. Below are other steps you can take to mitigate the effects of felony charges in California.
Invoking Your Right to Remain Silent
You have the right to remain silent. This is not something that is just made up or something obvious. The American Fifth Amendment Act gives you the right to avoid incriminating yourself from a case by remaining silent.
If you’re in police custody, refuse to answer any questions and politely insist that you will not answer any question without the presence of a lawyer. You don’t have to be hostile towards the police to invoke your right to remain silent. You only have to tell the police that you’re exercising your rights politely.
Remain Polite and Calm
It’s hard to remain polite and calm, especially if you believe that you don't know why you’re being questioned. It’s frustrating to be questioned by the police, particularly those that are aggressive.
However, you don’t have to resist or attempt to argue with the police, even when you believe that you’ve been arrested wrongfully for a drug crime and your rights are violated. The arresting officers might assume that you’re guilty if you resist an arrest and could have the court impose additional charges on you.
Contact a Lawyer Immediately
One of the most crucial aspects of defending yourself in a felony charge is contacting an attorney. Failure to contact an attorney will hurt your case. It’s crucial to contact a professional attorney once you are accused of a felony drug crime.
Sometimes, prosecutors might talk you into agreeing to a plea bargain, which might seem like a good option. However, having an attorney will help you play the field and allow you to take what seems like an easy deal and take something in your best interest.
Your lawyer will also understand the nature of the deal at hand and invoke your rights to avoid setting yourself an easy target for conviction. Remember, the police and prosecutor will be working hard to convict you, hence the need for an experienced person who will help you fight for your freedom.
Consult an Attorney Before You Post Bail
Most people post bail for their loved ones immediately after they're arrested. This is usually a bad idea, especially in a felony case. It’s advisable to speak to an experienced attorney who will help you make the right decision. Your attorney will help you in the following way:
- Review your case and assess whether the court will lower the bail and whether you can be released without posting bail
- Confirm whether the court will drop your charges at your arraignment. If that would happen, you will probably be released from custody
- Help you reduce your bail bondsman charge dropped from 10% to 8%, which is an offer guaranteed for defendants who prefer to involve attorneys in their case
- Advise you against posting a bond when there is a likelihood of raising your bail when you are arraigned, or there are chances of being returned to custody. At this point, your bail bond fees will not be a pain in return
Ensure that you contact an attorney who is experienced enough to guide you while posting bail. Speaking to an attorney will help you save your money.
Maintain Honesty with Your Lawyer
Your lawyer must have accurate information about your lawsuit to prepare adequate defense strategies. Therefore, it’s vital to be completely honest with the attorney throughout your case.
Most people don’t speak to their attorneys, but it’s recommendable to know that sharing your information with the attorney is completely confidential. Your information is confidential through a client-attorney privilege. When attorneys share a client’s information, they are at risk of facing disciplinary actions from the California state bar, which probably means losing their practice license.
Therefore, you should give your lawyer detailed information about what happened. The attorney will be better positioned to prepare the best defense strategies if you give more accurate information.
Refrain from Talking About Your Arrest with Your Friends and Family
Unlike conversing with your lawyer, your friends and family aren’t protected by the confidentiality rule. Anything that you inform them might be used against them if they speak to another person. However, there are different rules when spouses are involved in a case. Under the California Rules of Evidence, spouses have a particular extent of control over whether to testify in a lawsuit. This statute also permits a spouse to refuse to testify against the other and prevent what you had said during your conversation. Therefore, the best thing to do is restrain from telling your friends about the case until the case is over. This will reduce any potential damages to the case.
Write Down Everything You Can Remember
When you contact an attorney early enough, they will probably recommend that you write down facts about your drug crimes charges immediately. It’s easier to give close to accurate information from your mind, but you should keep the information fresh by writing down what you can remember about the proceedings following your arrest. In addition, you should include the place that you were during the arrest to make the information more accurate.
Remember, the prosecutor will document everything after your arrest to build a strong case that would successfully convict you. That's why it's recommended to give accurate information.
List All Your Witness
It’s crucial to write down the names and relevant contact information of every person who could testify on your favor or behalf while noting the statement of the events. Writing down the names of the witnesses who might have witnessed the alleged crime will help your lawyer follow up to confirm whether their version matches yours.
You should also note down the information of those that could testify about your good character. These witnesses would help your attorney prove that you wouldn’t commit a felony drug crime.
Ensure that You Attend Your Court Proceedings
Some misdemeanor charges allow defendants to choose not to appear in court. However, this isn’t the case with a felony. You must be present during your felony charges starting from arraignment, during a plea bargain, and during preliminary hearings. That’s why you should work with a lawyer to create a calendar of how you’ll attend your court proceedings.
Find the Best Drug Crime Attorney Near Me
A felony drug charge is a serious accusation with potentially detrimental consequences. If you or your loved one has been charged with a felony drug crime, you need the help of an experienced and aggressive lawyer to help in your case. At The Los Angeles Criminal Defense Attorney, we have successfully defended clients facing felony drug crime charges and are ready to help you too. So contact us today at 310-564-2605, and let’s help you go through these troubling times.