In spite of the state of California’s emphasis on the treatment and rehabilitation of individuals who use drugs and are in fact caught in the custody of the said controlled substances, being in actual possession is nevertheless considered to be a grave crime. The Health and Safety Code 11351 HS has made it unlawful to be in the custody of prohibited drugs such as heroin or cocaine or prescription medication drugs that are sourced devoid of an appropriate prescription such as oxycodone, hydrocodone, and codeine.
Possession for sale is often determined by the amount of the drugs and the condition in which they are in. For instance, if the drug has been subdivided into small portions, there is a likelihood that it is intended for sale. It is the responsibility of the prosecution to prove beyond a beyond a reasonable doubt that you had the intention of selling the drugs particularly in circumstances you are not caught red-handed. Often, drug addicts who are innocent of this crime are charged and this is why one needs the assistance of a skilled California drug crimes attorney with a proven record in defending these charges. Call Pasadena Criminal Attorney at 626-689-2277 or fill out our online contact form.
What Constitutes Possession of Drugs for Sale Crime under California Law?
For you to be established as guilty of being in custody of a controlled substance with the intention of selling the prosecution should establish six elements beyond a shadow of a doubt, and they comprise:
- The defendant was in ownership of a controlled element
Being in possession of the drugs basically suggests that you had immediate and direct control. Under the California Health and Safety Code Section 11350, for you to be sentenced, proof must be provided to establish possession. However, possession does not just imply touching or holding the drugs. It could also apply if the drugs are found in your home or car. Professional witness statements and laboratory tests will be employed to establish the drug’s chemical composition and the anticipated consequences. Possession may be classified into three diverse kinds which include:
Actual Possession
Definite ownership implies that you have instantaneous and direct physical control over the controlled substance, meaning that the substance is on you. For example, the drug could be in your body bag, cavity or pocket. Defending the charge of actual possession can be very tough especially if your attorney intends to argue that you were not in possession of the drugs, although it is not impossible. The charge of actual possession can also be made even if you possessed the substance a few moments before the cops searched.
Constructive Possession
Constructive possession merely denotes that the controlled substance was found on a site that you have control over and not essentially on your person. It can be that you execute direct control of the location or you do it by proxy or proxies. Nonetheless, adequate proof is required to induce in this case since just being in close proximity to the individual with the drugs or the drugs themselves does not certainly establish possession.
Joint Possession
If you and another person or people share constructive possession or actual possession, you’re then deemed to have joint possession. In a case where the drugs are discovered in an apartment you share with a spouse or friend, this could be viewed as constructive possession. However, if the drugs were discovered on every one of you or you were caught sharing objects used in drug sale or abuse. Then the charge could quickly become actual possession.
- You were aware of its existence and that it constituted a controlled substance
If the prosecution can be able to provide evidence that you were aware that the substance was controlled and capable of accomplishing applications as a narcotic, then you could be convicted of the offense. To make the matter worse, it's not the responsibility of the prosecution to prove that you knew the exact substance that was in your possession.
- You controlled a practical quantity of the drug, as opposed to just remains
The controlled substance is deemed usable if the quantity is large enough to be used by someone. The amount must be different from residues and traces since there is no likelihood that they can be used in a way that violates the California Health and Safety Code 11350. Nonetheless, a minimal amount may be considered a usable quantity if it has the capability of affecting judgment when used in that amount.
- You possessed a controlled substance with the precise intention of selling it
In this case, the prosecution must provide proof that the controlled substance was not for your personal use and that you intended to sell it. Selling could denote as receiving services, any valuable item, or money in place of the controlled substance. The following are certain factors that the prosecution will look at in order to prove that you possessed the controlled substance with the intention of distributing or selling:
- Large quantities of the controlled substance that surpassed a quantity characteristic of private use.
- You’re in possession of scales or other equipment used for measuring
- Huge quantities of cash
- Numerous cell phones
- A list of buyers or an address book
- Small containers or plastic baggies that may be utilized for allotting portions
Penalties and Sentencing
Possession of a controlled substance for sale is prosecuted as a felony. If you’re convicted under California Health and Safety Code section 11351, you will be subjected to two (2), three (3) or four (4) years in county jail, a fine not exceeding $20,000, formal probation and a sentence of up to one year (1) in county jail. You could also be placed on probation with no jail time. However, you’ll be required to attend drug counseling case, do community service, and attend a work-release program.
Nevertheless, additional penalty can apply contingent on the kind of controlled substance and the general quantity. For example, if you're arrested with cocaine or heroin, you face an extra three years if the substance surpasses a one-kilogram mass, ten years if the substance mass exceeds ten kilograms and twenty years if it’s over 40 kilograms.
If you’re sentenced for purchasing or possessing controlled substances for sale and you have a minimum of one conviction for a prior felony for a California drug crime, you face an additional three years in county jail for every felony conviction in the past.
Drug Diversion
Drug diversion is allowed under Penal Code 1000 PC. California drug courts permit individuals who have committed particular non-violent drug possession crimes to attend their sentences in drug treatment procedures instead of prison or jail terms. The most important advantage of drug diversion is that if you positively finish the program, your drug charges will probably be terminated.
Possible Legal Defenses for the Charges of Possession of a Controlled Substance for sale
Getting in contact with a skilled and knowledgeable drug defense lawyer when you have been charged with this severe drug crime of ownership for sale is vital in the formulation of an effective defense approach. There are numerous legal defenses that can make your charges to either be reduced or dismissed. Getting a defense attorney who is with a deep understanding of California drug crime is advised. Below are some fruitful defenses that a skilled attorney may bring about on your behalf:
Lack of control or possession
It is the prosecution’s duty to prove beyond a shadow of doubt that you had control or possession over the drug as a condition for conviction. The type of possession may be joint, actual or constructive. If you are facing these charges, your attorney could, however, argue that you did not possess the compulsory control or possession of the substance. It’s unsatisfactory to demonstrate possession just because the drugs were found near you or on a site that you have admittance to.
You were in possession of the drug temporarily
Under the California Health and Safety Code 11351 charges, temporary possession of a controlled substance might be a defense, if the intention of the possession was legitimate. You must, therefore, be able to prove that:
- You just held the drugs for a transitory or momentary period
- The intention for the possession was geared towards disposing of, destroying or abandoning the controlled substances with a view to preventing unlawful possession by another individual
- You did not mean to obstruct the police from getting the substance, for example by flushing it down the toilet after the law enforcers knocked on your door
For a positive defense, you need to able to prove all the above by bringing forward evidence. This requires proving that the above conditions have been met and are truthful. As opposed to proving beyond a shadow of doubt, the proof needed in this case is fair and lesser.
Lack of knowledge
For a conviction of possession of a controlled substance to be applicable, you ought to have known that you possessed a drug and that you had the full knowledge that it was a controlled substance. If you did not know the drug and their criminal nature, you ought to be cleared of illegal possession. This type of defense is only appropriate for certain cases and for it to favorably work for you, you should not have a past drug record, you should consent to taking a drug test and/or you cooperated with the law enforcers during the arrest. Furthermore, the prosecution needs to be able to demonstrate that you were aware of the presence of the drugs. If you looked totally clueless when you were arrested, you could not be sentenced for drug possession for sale.
Unlawful search or seizure
The Fourth Amendment to the United State Constitution, guarantee you the right against unreasonable searches and seizures by police. This, consequently, means that law enforcers should conform to specific procedures and formalities when performing arrests and searches. These bureaucracies comprise of the police having a search warrant, to only search within the latitude of the warrant and to have adequate possible reason to make an arrest. In a situation where the law enforcer does not follow the official procedure and unlawfully acquire evidence, any drugs that they discover perhaps cannot be adduced as evidence against you. Your defense attorney may request the judge to exclude the evidence by filing a motion to quash evidence using a Penal Code 1538.5 PC. This might greatly eliminate the odds of having the charges significantly reduced or dismissed.
Valid prescription
If you had a legitimate, prescribed medicine from a doctor who is approved to practice in California, you’re likely to have a good defense in your case. In a situation like this, the responsibility to proof is entirely on the prosecution since they have to prove that the prescription was not valid. Your lawyer may contend that you had a legitimate prescription if you suffer from an illness that is managed by a controlled substance. The catch in this defense lies largely in the quantity of the controlled substance that you were caught with. If it was considerably larger than your personal medical requirements, the defense might fail and the prosecution might use this to prove their case.
No intent to sell
To be sentenced for this charge, the prosecution ought to demonstrate that you intended to sell the controlled substance. You could be cleared of this charge if you, alternatively, can be able to ascertain that the possession was not for sale but for personal use. Ascertaining intent to sell may be hard and the prosecution will resort to the use of incidental evidence. Your charges could be reduced or dismissed entirely if the prosecution fails to show intent to sell. Your defense lawyer can contend that you had momentary possession with the intention of disposing of the controlled substance.
Contact Pasadena Criminal Attorney Today
A conviction for possession of a controlled substance with intention of selling may result in very grave punishment and consequences. If you have been charged with this offense, it's important to retain a knowledgeable drug defense lawyer who will formulate the best approach to defend you against the charges that you’re facing. In a nutshell, getting a good attorney who is well versed in the California drug crime law can mean the difference between an acquittal and a lengthy jail term. You will get a fearless drug crimes lawyer at Pasadena Criminal Attorney. Our attorneys have been very successful in helping clients facing drug crimes charges. Call 626-689-2277 or fill out our online contact form. We look forward to speaking with you.
