Los Angeles Drug Possession Defense Attorneys

Types of Drug Possession Charges

Under § 11350 of the California Health & Safety Code, there are three types of possession charges:

1. Actual Possession – Usually, this means that the drug was found on your person
2. Constructive Possession – This means the drug was found in an area in which you exercise control, such as your home or apartment.
3. Joint Possession – Shared actual or constructive possession of a controlled substance.

§ 11350 is not the only drug possession statute in California’s HS code. § 11351 is California’s “possession for sale” statute and § 11377 criminalizes the unlawful possession of methamphetamine and some other controlled substances.

Possession of a Controlled Substance

When it comes to California’s drug policy, one of the most commonly prosecuted drug crime charges is an offense referred to as possession of a controlled substance. All aspects of this offense, as well as court procedures and criminal penalties, are outlined in the California Health and Safety Code § 11350.

In short, HS 11350 prohibits the possession of various controlled substances without a valid prescription.

What is a Controlled Substance?

A controlled substance refers to drugs that have a negative effect on a person’s health and welfare, as deemed and regulated by the state and federal government. Some of these drugs can be prescribed to the general public for medical purposes, but exceeding the legal limits or using them outside of their intended purpose can make them illegal.

Drugs and substances are organized into schedule categories by the U.S. Controlled Substances Act (CSA) depending on their accepted medical use, potential for abuse, and likeliness to cause dependency in users. Although there are many different types of controlled substances, the following outline of the Schedules and common drugs within those Schedules can serve as an example:

• Schedule I – Controlled substances with a high potential for abuse, no accepted medical use, and lack of accepted safety for use. Common types of Schedule I drugs include: Heroin, LSD and various hallucinogens, MDMA, and marijuana.
• Schedule II – Controlled substances with a high potential for abuse and the potential for severe psychological or physical dependence. Common drugs in this Schedule include cocaine, opium, oxycodone, amphetamines, and codeine.
• Schedule III – Controlled substances with less potential for abuse than Schedule I or II drugs, a high potential for psychological abuse, and a moderate to low potential for physical dependence. Examples of Schedule III drugs are anabolic steroids, ketamine, hydrocodone/codeine when compounded with anti-inflammatory drugs (Vicodin), and certain barbiturates.
• Schedule IV – Controlled substances that have a lower potential for abuse and dependency than those in previous Schedules. Long-acting barbiturates and benzodiazepines such as Xanax, Klonopin, and Valium are the most common examples of Schedule IV drugs.
• Schedule V – Controlled substances with low potential for abuse and limited potential for dependency. Schedule V drugs, including cough suppressants containing codeine, must still be regulated and dispensed with a prescription.

A Schedule I drug is the most severe and has a high potential for abuse and dependency, while a Schedule V drug has the lowest abuse potential.

Legal Elements and Defense Strategies for Controlled Substance Possession Charges

Prosecutors have the burden of proving that an individual knowingly possessed a controlled substance. Drug possession charges are also based on quantity. In order for a judge to convict you of a possession offense, the prosecutor must show that you possessed enough of the drug to use it as a controlled substance.

While these legal elements may seem straightforward, there are many circumstances that can result in potential defense strategies. In some cases, for example, drugs:

• May not be physically present on a person;
• May be found on property that belongs to a person; or
• May be found in a location where two or more people may have immediate access to the drugs.

Prosecutors will also focus on proving that an individual knew that they had a controlled substance in their possession and that they knew possession of such a substance to be illegal.

In some cases, prosecutors may also charge individuals with additional related offenses, including:

• Possession of a controlled substance for sale
• Being under the influence of a controlled substance
• And others.

Depending on these and other facts, there may be differing defenses. People with valid prescriptions and people who did not know that a controlled substance was present on their property, for example, have a legitimate defense.

By focusing on all aspects of your arrest and charge, our legal team can tailor defense plans specifically to the situation at hand. We also conduct meticulous investigations to ensure that your rights were not violated at any point before, during, or after your arrest and that you were not the victim of an unlawful search and seizure.

Possession of a Controlled Substance Penalties

As with many drug crime offenses, penalties can vary widely. Based on the nature of the charge, controlled substance, prior criminal records, and whether other crimes were committed, prosecutors will determine an appropriate sentence.

Typically, possession of a controlled substance is a felony offense punishable by fines and up to one year of imprisonment. Penalties will increase with multiple offenses.

As California has begun to recognize the need to rehabilitate drug offenders – rather than simply punish them – court systems throughout the state are turning to alternative sentencing options that will allow offenders to obtain the help they need while preserving their record and freedom.

Possession with Intent to Sell (§11351)

California has complex laws when it comes to charging a person for possession of drugs with the intent to sell.

In general, a person violates the law if they:

• Possess a controlled substance
• Are aware they have possession of a controlled substance
• Know that what they possess is a controlled substance
• Possess enough of a drug to sell it for use as a controlled substance
• Possess a controlled substance with the specific intent to sell it

Possession of a controlled substance with intent to sell is more severe than simple possession. Simple possession is usually charged as a felony, but intent to sell is a felony charge punishable by probation/up to a year in jail or 2-4 years in state prison in addition to a maximum fine of $20,000.

Possession with intent to sell is taken seriously in California and will need a powerful and experienced attorney to fight your case.

Possession of Methamphetamine (§11377)

In addition to California’s drug possession statutes is a statute that specifically criminalizes the possession of methamphetamines. Whether this is charged as a misdemeanor or felony largely rests on the facts of your case as well as your criminal history (ex: any prior drug offenses).

If you already have one or multiple prior drug offenses on your record, you may need to avoid a conviction to stave off the enhanced penalties that befall repeat offenders.

Prohibited Substances Under HSC §11377

Methamphetamine is by far the most common and the most frequently prosecuted drug under this section of California law. HSC 11377 also prohibits the possession of other various controlled substances, including:

• Certain anabolic steroids
• Ketamine
• PCP
• GHB

Elements Required to Prove Possession of Methamphetamine

Simply being arrested for HS 11377 does not mean you will automatically be convicted. In order to gain convictions, prosecutors must prove all of the following:

• You knowingly possessed methamphetamine (or another controlled substance)
• You knew the substance was present
• You knew it was a prohibited substance
• You were in possession of a usable amount of methamphetamine

Legal Defenses for Methamphetamine Possession

Depending on the facts of your case, our attorneys can help create a customized defense strategy to obtain the most favorable resolution.

Some of the possible defenses for methamphetamine possession can include:

• The substance was not yours and you were not aware of its presence
• You have a valid prescription from a doctor for a form of methamphetamines
• There was police misconduct when they found the substance

In some cases, fighting charges and taking cases to trial may be the best option. In others, it might not.

Penalties for a Methamphetamine Possession Conviction

As a felony drug crime, possession of methamphetamine is punishable by up to one year imprisonment. Fines, court fees, community service, and probation may also be additional consequences of a conviction.

Individuals with a prior conviction for a serious crime may face higher jail time and a higher fine.

Drug Diversion Options for Meth Possession

Today, California has adopted a more lenient drug crime policy, meaning that certain accused individuals may be eligible for drug diversion programs.

Diversion is a type of alternative sentencing that may allow you to preserve your freedom and your criminal record while getting counseling or substance abuse treatment. You may qualify if you have been convicted of simple possession charges of methamphetamine, or other certain controlled substances, and if you meet other requirements. Many first-time, non-violent drug offenders charged with possession are eligible for drug diversion.

Our legal team can help you explore drug diversion alternative sentencing options after reviewing your case.

Possession of Drug Paraphernalia

The state of California punishes possession of drug paraphernalia as a misdemeanor, which carries the potential of a jail sentence and expensive fines. If you have been arrested for possessing any type of drug paraphernalia, it is crucial that you consult with a seasoned lawyer.

What Is Considered Drug Paraphernalia?

Under California Health and Safety Code 11364, any type of instrument or device that can be used to smoke, inject, or consume an illegal drug can be considered drug paraphernalia.

Most of the possession of drug paraphernalia cases we handle at our firm involves the following:

• Pipes
• Bongs
• Hookahs
• Syringes
• Spoons
• Rolling papers
• Tourniquets
• Hypodermic needles
• Razorblades
• E-cigarettes
• Pacifiers
• Tinfoil

There are exceptions to the state’s drug paraphernalia laws. For example, it is legal to possess syringes or hypodermic needles if you obtain them from a doctor or exchange program that is authorized by state law.

Proving Possession of Drug Paraphernalia

Prosecutors have to prove the following elements to convict you of possession of drug paraphernalia:

• You illegally possessed an item that can be used to consume or inject a controlled substance
• You knew that the item was actually drug paraphernalia
• You were aware that the item can be used for unlawfully consuming or injecting a controlled substance

Possible Legal Defenses for Possession of Drug Paraphernalia

Some of the common defenses used in drug paraphernalia cases include:

• Lack of knowledge
• Absence of possession
• Wrongly identified paraphernalia
• Legal possession
• Miranda rights violation
• Illegal search or seizure

Do I Qualify for Drug Diversion / Sentencing Alternatives?

In California, certain low-level drug offenses may qualify for drug diversion programs as an alternative to incarceration. Examples of low-level offenders are those charged with non-violent, simple drug possession of drugs in small quantities. Under the Deferred Entry Judgment (DEJ) process, you will plead guilty but avoid a conviction if you successfully complete the drug diversion program, which includes drug education courses.

Our team pushes aggressively to help keep you out of jail when possible so that your future is not negatively impacted by your charges.

Defenses We Can Use in Your Drug Possession Case

Because a drug possession conviction requires proof that you knew about the drug and possessed a certain quantity of the drug, two major legal defenses we may be able to use in your case include: A) arguing that you did not know the drug was present/did not know the substance was a controlled substance, and B) arguing that you did not possess a large enough quantity of the drug to warrant a possession conviction.

Some other defenses we can use include:

• You possessed a valid prescription
• Police didn’t have a valid warrant to search
• You didn’t actually possess the substance
• No intent to sell (for § 11351 charges)

By contacting us today, one of our skilled attorneys can evaluate your case and inform you of your legal rights and options. It also allows us to become acquainted with your unique needs. For example, if this is your first encounter with the criminal justice system, your legal need would be to keep a clean criminal record.