Posted on February 24, 2016
Controlled Substance Possession – HS 11350 & HS 11377
In California, accusations of possession of a controlled substance is charged under different types of statutes. After the passing of Proposition 47, all simple possession charges, which were previously straight felonies, are now misdemeanors. Simple possession charges are charged by the government under Health & Safety Code 11350(a) or Health & Safety Code 11377. When faced with drug charge accusations, it’s important to retain a Drug Possession Defense Lawyer who is knowledgeable and experienced in drug defense laws. Common controlled substances include, cocaine, heroin, ecstasy, methamphetamine, and prescription medication. The following article will address 8 important things you should know about the crime of possession of a controlled substance.
1. What Must the Government Prove for Drug Possession?
In order to prove you’re guilty of possession of a controlled substance under either HS 11350(a) or HS 11377, the government holds the burden of proving each of the following elements beyond a reasonable doubt:
1. You unlawfully possessed a controlled substance;
2. You knew of its presence;
3. You knew the substance was an illicit drug;
4. The substance was an illicit narcotic;
5. The substance was a usable quantity.
2. What are the Defenses to Possession of a Controlled Substance?
I. Lack of Possession
You may find it helpful in learning about California “possession” laws and how the government is permitted to argue one of three theories of possession towards the end of this article. However, if you were not in actual possession of the substance, and you did not have control or a right to control the substance, then you are not guilty of this offense.
II. Lack of Knowledge: Presence
If you did not know that you in possession of an illicit drug, then you cannot be found guilty of this offense. In other words, someone could have placed the substance in your vehicle, in your home, or you were perhaps holding someone else’s belongings which contained the controlled substance. The law will not punish someone if they innocently did not know they were in possession of an illicit narcotic.
III. Lack of Knowledge: Character
As a required element of this offense, the government must show you understood the nature and character of the substance. Moreover, the government must show that you knew the substance was a narcotic. However, the government need not prove you knew of the type of the substance it was. Thus, if you did not know that the substance you were possessing was a narcotic, then that will serve as a viable defense in getting the case dismissed or acquittal at trial.
IV. Substance was Not a Narcotic Substance
You’re factually and legally not guilty of this crime if the substance was formally tested by a law enforcement criminalist, and found not to be a controlled substance. Moreover, the substance must not be nor have traces of a controlled substance. However, if certain portions of the substance contains narcotics, then that will suffice for this charge. In other words, a small amount of cocaine was mixed with baking soda.
V. Not a Usable Amount
The element of usable quantity is commonly misunderstood between individuals arrested, law enforcement, as well as defense lawyers. Usable amount means there was enough substance to ingest regardless of its effect on someone. However, residue, useless traces or debris will not be suffice to withstand this charge.
VI. Valid Prescription
In the event you’re arrested for possessing prescription medication but you ultimately were given a valid prescription by a licensed physician, then the charges will likely be dropped against you provided you can prove you had a prescription at the time you were arrested or cited by police.
VII. Illegal Search & Seizure
If the physical evidence gained against you was the product of an illegal search and/or seizure by the police, then the judge will order the substance to be inadmissible against you. In that event, the government will be unable to proceed with their case against you. Search and/or seizure issue commonly arise under invalid or defective search warrants, illegal traffic stops, prolonged detentions, or unsupported probable cause searches.
VIII. Miranda Violation
The most damaging evidence against someone can their own incriminating statements to police. The government may be able to prove you knew you were in possession of the substance, or perhaps prove you understood the character of the substance to be an illicit drug, simply based on your admission to a police officer. If a police officer subjects you to custodian interrogation, the law requires they admonish you of your Miranda rights. Failure to do so, will result in the suppression of your statements in court.
IX. False Accusation(s)
False accusations could occur if someone is pointing the finger at you in an effort they avoid arrest or responsibility for the crime. Furthermore, another could have planted evidence against you. For example, your former spouse planted the substance and called the police to get you arrested so they can have better chances in a divorce or child custody proceeding.
X. Mere Presence is Insufficient
The general rule is that mere presence in a place where drugs are present is not enough to sustain a conviction for this offense. This general rule reinforces the fact that you should decline making a statement to police. This defense usually coincides with lack of possession – discussed above.
XI. Agreeing to Buy the Substance
If you merely agreed to purchase the substance without anything more, then that is not enough to justify a conviction for this offense.
3. What is the Punishment for Possessing a Controlled Substance?
The punishment for possession of a controlled substance carries up to 1 year in the county jail. The court will normally imposes a probation period of three years and order you to complete drug counseling.
Depending on your case and your prior criminal history, you may be eligible for diversion (sometimes called “alternative sentencing” or “deferred entry judgment”) where you enter a plea, and your formal sentence is withheld for 12 to 18 months. Because you avoid being sentenced, you avoid a formal conviction. As a condition to diversion, you must complete drug counseling within the 12 or 18 months period.
Upon successful completion of drug counseling, and upon expiration of the 12 or 18 month period, the case will be dismissed. Failure to fulfill your diversion obligations, the court will formally sentence you, and thus you will then be convicted of the offense.
4. What are Examples of a Controlled Substance?
• Possession of Prescription Medication
• Possession of Cocaine (“Coke”)
• Possession of Heroin (“H”)
• Possession of Marijuana
• Possession of Ecstasy (“E”)
• Possession of Methamphetamine (“Meth”)
• Possession of Psilocybin Mushrooms
5. What are Examples of Possessing a Controlled Substance?
• Driving with a small bag of cocaine in the trunk of your car
• Carrying a 1 gram of methamphetamine in your pocket
• Having a box on your kitchen table containing 2 grams of heroin
• Having 1 pill of ecstasy in your backpack or suitcase
6. What does “Possession” Mean?
There are three theories of possession the government has the option of electing to prove. Actual possession means you carried the substance on your person or inside your vehicle. Constructive possession means you had control over the substance or “right to control” the substance. And joint possession means where two or more people may possess the substance at the same time.
7. Possession of a Controlled Substance Expungement
Penal Code 1203.4 governs the California “expungement” statute where upon proper petition and approval from the court, you drug possession conviction will be ordered dismissed. If the court grants your petition, you will be released from all “penalties and disabilities” resulting from your conviction. To obtain this remedy, you must be fully completed with your probation period and obeyed all orders from the court. Dismissal under 1203.4 carries considerable benefits especially for those seeking employment in the private sector. For more information about expunging your narcotic conviction, contact the Law Offices of John Rogers.
8. Free Criminal Defense Consultation
If you’ve been arrested or charged with possession of a controlled substance under HS 11350 or HS 11377, contact Drug Possession Defense Lawyer John Rogers at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.