When you are found in possession of controlled drugs or substances, you are likely to face criminal charges. The penalties for this offense are severe. They depend on the quantity of drugs in your custody and the kind of substance. Your criminal record, as well as why you had the drugs is also a factor. When one is accused of having controlled substances, it not only involves illegal narcotics but pharmaceutical drugs without a prescription. This is a serious offense that requires committed and serious defense strategies to fight against possible penalties. At The Los Angeles Criminal Defense Attorney, we are experienced and able to fight these charges on your behalf and avoid undeserving penalties.
The Act for Controlled Substances
The Federal government has a schedule that classifies controlled substances. According to the Controlled Substances Act (CSA), there is a categorization of drugs. This is according to their medicinal use, possible abuse as well as their safety. However, concerns have been raised regarding the categorization of certain drugs in the system. For instance, Marijuana is classified on schedule I just like Heroin, yet it has been legalized in several states, with California being one of them.
The CSA has five schedules under which controlled substances are categorized. The most dangerous substances are classified under schedule I, and the least dangerous substances as schedule V.
- Schedule I – these substances have no medicinal value and can highly be abused. The drugs under this schedule include mescaline, GHB, MDMA, Marijuana, and LSD.
- Schedule II – these are substances or drugs believed to have a high likelihood of abuse as well as medicinal value. They include drugs such as Fentanyl, Percocet, Morphine, Oxycontin, and Methamphetamines.
- Schedule III – these are drugs that are believed to an acceptable medicinal value but can also be abused although they are safer compared to schedule I and II drugs. Some of these drugs are common steroids, appetite suppressants, and antidepressants.
- Schedule IV and V – drugs in this category are believed to have a low possibility of abuse compared to others. These include some prescription drugs such as Xanax, Ambien, Valium, cough medicine, and Ativan.
What Does the Possession of Controlled Substance Mean?
It makes it a criminal offense for an individual to be found in possession of controlled substances and holds no valid prescription as contained in health and safety code 11350.
When these accusations are leveled against an individual, to get a conviction, the prosecution must show five elements to be true. These elements or facts are:
- The accused person had controlled substance in their possession
- The defendant held no prescription for the said substance
- The accused was aware they had the controlled substance
- The accused knew that the federal government controls the substance
- The quantity of the controlled substance was usable.
When a substance is defined as controlled, it means it is a chemical or drug whose production, the federal government controls the use and possession according to the controlled substances act of the United States.
Under this statute, the questions that arise are what possession, usable amount, knowledge, and the controlled substance analog means. Here, we discuss what each of these means with regard to the law for ease of understanding.
An individual is described to have something if they exercise control over it. Having control can be directly or by the use of a proxy. A person does not need to hold a thing to have it physically. For instance, an individual can be said to be in possession of drugs when they have been put in a bag. They can keep somewhere for themselves, like the trunk of a car or a locker, a closet, or a storage unit.
An important distinction here is that an individual that goes into an agreement to purchase the controlled substance cannot be said to be in control over it, so they are not in possession. It is also worth to note that possession of a substance can be by more than one person at a time.
As earlier stated, for a person to be found guilty according to HS 11350, they must be aware that the controlled substance is there, and it is controlled according to the law.
The law does not require a prosecutor to prove the accused knew the specific substance he had in his possession, but only that the defendant was aware of the substance was a drug that is controlled.
When an amount is described as usable, it means that it is in an amount that is sufficient for use by a person. When a substance is said to be in debris or traces, which are not an adequate amount making it unusable. A usable amount, in this case, is not about the strength the substance has to intoxicate its user but enough substantial amounts to be used.
Controlled Substance Analog
Based on the statute, it is a criminal offense for one to have a controlled substance analog. An analog, in this case, states either the substance:
- Has a similar chemical structure as that of the controlled substance
- Affects the central nervous system similarly or in a more significant proportion than that of a controlled substance.
Penalties for HS 11350 Violations
Most cases of possession of controlled substances are prosecuted as misdemeanors. When a person is convicted of this crime, the possible penalties include:
- County jail imprisonment for a period not exceeding a year
- Cash fine of not more than $1,000, or either.
Some circumstances can lead to felony prosecution for narcotics possession. For instance, if the accused person has a previous sex crime or other serious felony convictions, possession of narcotics can be a felony charge. A conviction for a felony offense, in this case, can result in county imprisonment for not more than three years.
In some cases of unlawful possession, the defendant may be sentenced to treatment, also known as drug diversion or drug court programs. The court can sentence a person that has not committed a violent crime in drug possession to serve their time getting treated for drug abuse.
When charges on controlled substance possession are leveled against you, you must get in touch with a criminal lawyer to fight these allegations. Your lawyer, in your defense, will come up with various strategies to fight HS 11350 violations on your behalf. These strategies include:
Lack of Possession
Under the section of the Health Code, a defendant can only be found guilty if they had in their possession a controlled substance. Your lawyer can, therefore, try to prove that you did not have any illegal substances at the time of your arrest.
A defendant cannot be found guilty of possession if they had a written and valid prescription for the drugs in their custody. The prescription must be from a doctor, a dentist, a veterinarian, a podiatrist, or a physician.
The prosecution must convince the court beyond any doubt that the accused had no valid prescription for the drugs in their possession.
Unlawful Search and Seizure
According to the Fourth Amendment, individuals have a right to freedom from unreasonable or illegal searches and seizures by police officers or other law enforcement officers. Should evidence be obtained through an unreasonable search and taking, the evidence cannot be used against the defendant. This means the charges against the defendant can be dismissed or reduced.
Immigration Consequences for Possession of Controlled Substances
A drug possession conviction will result in negative consequences for an undocumented immigrant. According to the United States laws on immigration, various kinds of convictions can lead to the deportation of non-citizens even in California. Sometimes, an immigrant can be branded inadmissible in the country upon conviction.
Based on specific elements of HS 11350 violations, an immigrant may suffer detrimental consequences as a result of the conviction.
Expungement of a Conviction on Controlled Substance
According to PEN 1203.4, an individual convicted of possessing controlled substances can apply for expungement of a criminal record. When a person gets their record expunged, it means they are released from disabilities and penalties that arise from the conviction.
Whether your conviction was a felony or a misdemeanor, a person’s record can be expunged as long as the applicant meets some conditions. These include:
- The defendant must have completed their probation period successfully and
- The defendant is not facing another charge for an offense at the moment, still on probation, or even serving a jail sentence.
This means that any person upon successful completion of their jail time or probation penalty can apply to have their record expunged.
Are Your Gun Rights Affected by a Conviction?
When one gets a conviction for HS 11350 violations, they may face negative consequences on their gun rights. California law prohibits a convicted felon from buying or owning a gun. This happens in instances where the person was convicted under felony charges, regardless of whether they served their punishment.
Related Crimes to Possession of Illegal Substances
Possession of controlled substances is related to three other crimes. These are:
- HS 11351 – possession to sell controlled substances
- HS 11352 – Selling and Transporting controlled substances
- HS 11550 – Being under the influence of a controlled drug or substance.
HS 11351 – Possession to Sell
According to HS 11351, it is a criminal offense for a person to have in their possession controlled substances to sell them.
Proving Intention to Sell
For an individual to be found guilty of this offense, the prosecutor must confirm their intention of selling the drugs. This is referred to as Indicia of Sale. For this to be true, there must be:
- Presence of large quantities of the controlled substance or drugs
- The controlled substance or drugs are packed in smaller but separate bindles or baggies
- There must be a presence of weighing scales
- There must be the presence of large amounts of money in small bills
- There must be significant human traffic to your premises, staying for a short time.
Penalties for Possession to Sell
If you get convicted of violating HS 11351, you are likely to be sentenced to imprisonment in a county jail for two or three or four years. You may also be asked to pay a fine not exceeding $20,000 or either.
Your lawyer can also argue your case to get you sentenced to probation with a year in jail. When convicted of this offense, the defendant is not eligible for a drug diversion sentence.
Legal Defenses Against HS 11351 Offenses
The facts of the violation present the best strategies for a defense your lawyer can apply. Some of the strategies your lawyer may use include:
Illegal Search or Seizure
The laws on search and seizure can be violated in various ways by law enforcement officers. Enforcement officers can conduct a search without a legal search warrant. This, in itself, is a violation of the law. Sometimes, the officers may search beyond the scope of their warrant, for instance, when a warrant requires the officers to search your car, but they search your house as well. Illegal detention is another way officers can perform an illegal search. When the police had no reason to stop you, but they do and conduct a search that produces drugs. Because of the unlawful nature of the search, the evidence they may get will not be admissible in court.
When your lawyer can establish the search was illegal, he or she, according to PEN 1538.5, will file a motion for suppressing the evidence. If the motion is successful, the charges against you may be dropped or reduced.
No Intention to Sell
Sometimes you could have had the drugs for your use and not to sell. If your lawyer is able to prove that selling was not your intention, the allegations may be dropped. Although this defense may sound counterproductive, a possession charge for personal use will result in less severe penalties. A defendant may be asked to engage in a drug treatment program instead of serving a jail sentence. This defense is only viable if the evidence against your possession is overwhelming.
You Had no Possession of the Controlled Substance
If your lawyer is able to persuade the jury or judge that you had no controlled substance in your custody, your charges would be dropped. This is a suitable defense where the allegations were of constructive possession. For instance, the defendant may have made a deal with an undercover officer to buy drugs to resell from them. The defendant then meets the officer and pays for the drugs. However, before he or she could possess them, he is arrested. The statute states that the defendant should have been in control of the drugs, but in this case, he never did. This means he is not guilty of possession with intent to sell.
Lack of Knowledge
Similarly, the prosecutor must prove that the defendant was aware of the controlled substance and their nature. If he is unable to convince the judge or jury of this, one cannot be convicted of possessing them to sell them. This is an ideal defense when the defendant holds no prior regarding drug use or possession. The defendant, in this case, can be able to convince the court that they did not know the drugs were an illegal substance owing to the fact that they have never dealt or used before.
HS 11352 – Transportation and Sale of Controlled Substance
Based on this statute, it is prohibited to sell, transport, distribute, or give away drugs. Previously, transportation included moving drugs from one place to the other for individual use. However, since 2014, the legislature amended this statute. Transportation would be only a crime if one moved the drugs intending to sell them.
Penalties for HS 11352 Violation
If one is accused of transporting or selling controlled substances, they are charged with a felony. The penalties if one is convicted include:
- Jail time of not less than three years with a maximum sentence of nine years.
- A cash fine not exceeding $20,000
However, a defendant can face enhanced penalties due to various aggravating factors. Selling drugs to underage persons or transportation of particular quantities can lead to increased penalties for an offender.
Other factors will make it impossible for a defendant to be sentenced to formal probation or have their sentences suspended. These factors include:
- If you sell 14.25 grams or more of any substance that contains Heroin
- You are found guilty of this offense when you offer to sell any quantity of Heroin while you have a prior HS 11352 and HS 11351 conviction of having and selling narcotics
- One is convicted of violating HS 11352 if they offer to sell or are selling Cocaine, Methamphetamine, or cocaine base and hold a previous conviction of the same offense.
Possible Legal Defenses
There are several defense strategies your lawyer can use to defend you in a court of law. Some of these strategies include:
Sometimes police are responsible for planting drugs to make an arrest. This is done by police who are frustrated to close a case, and they look for an easier way out. If this is established, the charges against you will be dismissed.
Police have also been known to lie about where the narcotics were found. They can say they found it in your car when it was on the ground next to your car. Other times police can falsify the reason why they arrested you or even use excessive force to get you to confess.
All these are incidences of police misconduct that, if proven, can lead to dismissal of the charges.
This is a defense when a defendant can show how they were lured by the police to violate HS 11352. There are situations when an officer can harass or coerce an individual to commit a crime that they would never have under normal circumstances.
Other defenses for this crime are similar to the previously discussed defenses in other offenses. Lack of intent and knowledge, as well as unlawful search and seizure, are defense strategies that your lawyer can also use.
HS11550 – Being Under the Influence of Drugs
Being intoxicated by narcotics or controlled substances is a crime, according to HS 11550. Simple acts of going somewhere when intoxicated by Heroin or Cocaine is a crime. For a person to be found guilty of this crime, the prosecutor must prove two elements to be true. These are:
- The defendant intentionally used drugs or illegal substance
- That they used it intending to get intoxicated.
Several substances fall under this category. They include PCP, Hydrocodone, Codeine, Methamphetamine, among others. However, Marijuana is excluded, but offenses with regards to it are separately prosecuted under the laws governing its use.
If you are accused of violating this law, you will be charged with a misdemeanor offense. This is different from being charged with an infraction or a felony. A person convicted of the offense risks county jail imprisonment for a year.
In some cases, a judge may sentence the defendant to summary probation as opposed to serving jail time.
If accused of this offense, your lawyer can use three different strategies in your defense. These strategies will include:
Legal Administration of the Drugs
If the controlled substance the accused was under the influence of was legally prescribed by a licensed person, it is not a crime to have consumed it. Some medical drugs are known to cause an intoxication effect that may not be easily distinguished from the intoxication of other narcotics. A defendant must produce a prescription slip and show what the drugs were administered for, and that they were used as prescribed.
The Defendant was not Intoxicated
Your lawyer can try and show that you were, in fact, not under the influence of any controlled substance. This defense can be strengthened by showing:
- When the defendant was arrested, he or she had no possession of any narcotics or drugs
- Either the police did not ask for a blood test to prove drugs in the system or the blood test taken showed no drugs in the system.
For a person to be guilty of this offense, they must have consumed the drugs willingly and with the knowledge that they will lead to intoxication. Your lawyer can argue the case that you did not take the drugs willingly. Probably you were tricked or drugged, making you intoxicated. If this defense is convincing to the court or jury, the defendant is not guilty of the offense.
Find a Los Angeles Criminal Lawyer Near Me
A conviction of possession of controlled substances is not good for your record, aside from the penalties a guilty verdict can result in. Sometimes individuals face wrongful convictions when they are not able to defend themselves effectively. This makes it essential to hire a criminal attorney to fight these allegations on your behalf. At The Los Angeles Criminal Defense Attorney, we have a team of experienced criminal defense lawyers that will be happy to assist with your defense. Call us today at 310-564-2605, and let us help you overcome these allegations.