California Possession for Sale of Controlled Substance
Charges of possessing of a controlled substance for sale is a straight felony and cannot be reduced to a misdemeanor. There has been a recent rise in prosecutors filing drug sales cases as a result of California Proposition 47 which classifies all simple drug possessions as misdemeanors. Consequently, prosecutors are seeking harsher punishments for drug sale offenders. Often times, a skilled criminal defense attorney can negotiate with the prosecutor to have the drugs sales charges changed to simple misdemeanor possession making the defendant eligible for a number of drug diversion programs and upon successful completion, have the case dismissed.
Having knowledge and familiarity in drug sales cases is necessary to earn an advantageous outcome. Los Angeles Criminal Defense & Drug Crimes Lawyer John Rogers has achieved dismissals on numerous drug cases. Additionally, Mr. Rogers has developed a unique approach in narcotics cases to earn dismissal based on lawful search and seizure issues. Contact Mr. Rogers immediately, early intervention is critical to successful criminal defense.
Elements of the Crime
In order for someone to be found guilty of possessing a controlled substance for sale, the prosecutor must prove six elements beyond a reasonable doubt:
- Defendant was in possession of a substance
- Defendant knew of its presence
- The substance was an illicit drug
- Defendant had knowledge of the substances characteristic
- The substance was a usable amount
- Defendant intended to sell it
What are the Legal Defenses to Possession for Sale?
- You were not in “possession” of a controlled substance. Note however, possession may be proven by actual or constructive possession. However, mere presence at a scene alone does not justify sufficient evidence to prove possession. Similarly, merely agreeing to buy a controlled substance does not justify possession either.
- You had momentary or transitory possession of the substance with the intentions of disposing it. For instance, you discovered the substance on the ground and you were in the means of discarding it in a trash bin when you were detained by police officers. Additionally, this defense requires that you had no intentions of prohibiting police officers from obtaining the substance.
- You did not have knowledge you were in possession of a controlled substance. For instance, your friend left their backpack in your case where an officer subsequently search and located the substance. Since you did not have knowledge of the substance’s presence, you would be not guilty of possession for sale of a controlled substance.
- The substance was not illegal. Perhaps you had a valid prescription permitting you to carry the quantity of pills or marijuana.
- The amount was not a usable quantity. The standard is whether there was enough substance to ingest but need not have any effect on the user. But mere residue will not suffice to constitute a usable amount under this section.
- You did not have any intentions of selling the substance. Instead, the amount was for mere personal use. Note however, the prosecutor need not prove that one had the intention of gaining money for sales, instead they can prove that you intended to sell it for goods, services, or anything with value.
- The police officers unlawfully searched and seized you under the fourth amendment of the U.S. constitution.
- The police officers are lying, fabricating, planting, or exaggerating the evidence against you.
Common Types of Controlled Substances
- Concentrated Cannabis
- Psilocybin Mushrooms
What are the factors to prove intent to sell?
There are a number of factors law enforcement and prosecutors use to determine whether someone possessed a substance with the intent to sell. Common factors include:
- Digital scales or weighing devices
- Pay-owe sheets
- Large quantity beyond personal use
- Confession by the Defendant
- Small Plastic Baggies
- Lack of Paraphernalia – e.g., lighters, pipes, etc
- Small quantities but in separate baggies
- Large Amounts of Currency
- Instruments used to create / manufacture substances
- A confidential informant who you sold a substance to
- Text Messages or Facebook Pictures / Posts
What is the Punishment for Possession for Sale of a Controlled Substance?
Consequences vary depending on a number of factors including the defendant’s prior criminal history, the amount of substance the defendant is alleging selling, etc.
If convicted of a felony for intent to sell a controlled substance, one faces time in state prison, formal probation, drug treatment classes, and must register with local law enforcement as a drug offender. If one suffers from a prior drug sales conviction, they are not eligible for diversion programs that earn dismissals upon successful completion. Additionally, a defendant can expect to face harsher consequences due to being a prior drug offender. Furthermore, one can expect the prosecutor to file enhancement charges if the contraband was discovered with a firearm.
- 16 Months, 2, or 3 years in California state prison
- Substantial Amount of Court Fines
- Time on Formal Supervised Felony Probation
- Register as a Narcotics Offender
- Suffer Adverse Immigration Consequences
- Affect One’s Ability to obtain State Licensing
- Affect One’s Ability to Obtain Bank / Student Loans
- Drug Counseling and NA Meetings
- Lose Second Amendment (firearm) Rights
- Temporary Lose Search & Seizure Rights
- Criminal Conviction on your Record
Defending your Case with a Defense Narcotics Expert
The prosecutor generally calls a seasoned police officer to testify as an “expert” to prove that you had the intent to sell the substance based on the factors outlined above. The Law Offices of John D. Rogers has access to a number of qualified narcotics experts who were former police officers or federal agents to testify on your own behalf. Their testimony is critical to show that based on the circumstances, the evidence does not prove you had the intent to sell thereby negating the prosecutors “expert” police officer witness. See some of the examples below.
Police officers raid Dan’s house with a search warrant after gaining information from a confidential informant. Police discover $10,000 in currency in Dan’s bedroom safe with a scale and four ounces of heroin. Dan is arrested for possession of heroin with the intent to sell. In this case, Dan is arguably guilty of possession with the intent to sell because of the large currency combined with the amount of heroin unusually beyond personal use.
Dan is pulled over in his car by a police officer. The officer searches Dan’s car and finds two baggies of cocaine totaling $150 in value. Because there are two separate baggies, officer arrests Dan for drug sales. Dan’s defense attorney would argue that although being in separate bags, $150 is consistent with respect to personal use warranting a dismissal.
Dan is a successful construction worker earning $70,000 per year. Police officers raid Dan’s apartment and find one pound of marijuana in his closet. Dan is arrested for possession of marijuana with the intent to sell. Dan’s defense attorney would argue that Dan makes a good living at his job and has no legitimate reason to sell marijuana. Furthermore, the officers did not find any scales, pay-owe sheets, or large amounts of currency. Additionally, Dan’s defense attorney will show that he’s a heavy marijuana smoker and this amount is consistent with his personal monthly usage.
Free Los Angeles Drug Crimes Attorney Consultation
If you have been arrest or charged with possession for sale of a controlled substance, contact Los Angeles Drug Attorney John Rogers at the Law Offices of John D. Rogers for a free consultation. Mr. Rogers has extensive experience in drug sales cases. Mr. Rogers is located at 1801 Century Park East, 24th Floor, Los Angeles, CA 90067. Call 877-888-9820 now for a free confidential consultation, Mr. Rogers is available 7 days per week.