California “Possession for Sale” Laws – Health & Safety Code 11351 HS

February 26, 2016

In California, possession of a controlled substance for the purpose of sale is charged under health & safety code 11351 hs[1]. It is a straight felony that cannot be reduced to a misdemeanor. It covers a variety of substances including:

  • Cocaine
  • Heroin
  • Ecstasy
  • Prescription Drugs

Contrary to popular belief, the prosecution does not need to prove you actually sold a controlled substance. Instead, the prosecutor must prove you possessed a controlled substance and intended to sell it or give it away. Often times, the prosecutor circumstantially proves sales by one or more of the following:

  • Large quantity beyond personal use
  • Digital Scales discovered with the substance
  • Baggies, pay-owe sheets, and large sums of cash
  • Eyewitness to a transaction or confidential informant
  • Admission by the suspect to selling the substance

It is common for someone charged with methamphetamine sales to also be charged with:

It is important to consider that drug sales is a crime in California, however, it is also a federal crime. Accordingly, a person charged in state court may also simultaneously be charged in federal court.

What is the Prosecutor Required to Prove for HS 11351?

In order to be found guilty of HS 11351, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. You were in actual or constructive possession of a controlled substance;
  2. You knew of its presence and character;
  3. The substance was a usable amount;
  4. You intended to sell it.[2]

What are the Legal Defenses to Possession with the Intent to Sell in California?

  • Intent: Lack of intent to sell is usually shown when the defendant is a heavy drug user. Moreover, if the prosecutor claims the substance quantity is beyond personal use, a defendant can counter by showing their large daily use. Furthermore, an individual may not sell methamphetamine, but rather purchase the substance in bulk from their supplier. The presence of smoking devices typically support a personal use defense.
  • Possession: Actual possession means you had dominion and control over the substance. However, constructive possession is fertile ground for litigation. Ordinarily, a controlled substance is found within a car, a residence, or public place within the apparent control of many people.
  • Knowledge: Someone cannot be guilty of selling a controlled substance if they did not know of its presence. For example, someone may have left drugs in your car or inside a guest bedroom drawer without your knowledge.
  • Mere Presence: Mere presence at the scene of a crime, without more, is not sufficient for a conviction. Accordingly, merely being present in a drug sale transaction makes a person nothing more than a witness.
  • Transitory Possession: Momentary possession of a drug may be sufficient for a conviction, but not if you had transitory possession for the sole purpose of disposing the substance.[3]
  • Constitutional Challenge: You may have a constitutional challenge if the police violated your Fourth Amendment Moreover, drug cases usually contain detention or search warrant issues that could lead to suppressing the substance altogether. If the court suppresses the substance, then more likely than not, the prosecutor will be unable to proceed with their case.

What is the Punishment for HS 11351?

HS 11351 is punishable as a felony only. It carries a 2, 3, or 4 year county jail sentence. Additionally, other conviction consequences include:

  • Denial or an occupational or professional license
  • Adverse immigration consequences for non U.S. citizens
  • Registering with local police as a narcotics offender
  • Life-time prohibition from owning or possessing a firearm

What are Examples of HS 11351?

  • Paul was pulled over by a police A search of Paul’s car yielded 6 ounces of cocaine in different bags along with a loaded firearm. Paul was arrested for HS 11351. Here, Paul would be charged with sales because the amount itself, with it being in individual bags, is consistent with street sales versus personal use.
  • The police execute a search warrant on Dan’s home. They discover a kilogram of heroin, digital scales, and pay-owe sheets inside his bedroom safe. Here, Dan would be charged with possession of heroin with the intent to sell based on the indicia of sales – i.e., scales, quantity, and profit statements.
  • John was stopped on his bicycle for appearing suspicious. The officer subsequently searched John’s pockets and discovered 5 pills of ecstasy. John was arrested and charged with drug sales. Here, John will argue that there was no constitutional basis to detain him since appearing suspicious is not evidence of a crime. Furthermore, John will further argue that 5 pills of a substance is consistent with personal use versus sales.

Contact Us to Schedule a Free Consultation

If you have been charged or are under investigation for possession of a controlled substance for sale under health & safety code 11351 hs, then call us today. Early intervention by an experienced Orange County criminal defense attorney can mean the difference of serving time in jail or having your case rejected entirely. Contact the Law Offices of John D. Rogers today to schedule a risk free consultation about your rights and defenses.

Attorney John D. Rogers is a board-certified criminal law specialist. This is a prestigious distinction that less than 2% of California criminal defense lawyers have achieved. He has unmatched success in defending his clients in all types of drug crimes, especially when his clients are faced with a “must win” dilemma. He focuses his representation to dismiss charges or obtain an acquittal at trial.

Legal References:

[1] Health and Safety Code 11351 – defined: (“Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.”)

[2] See CALCRIM No. 2302

[3] See People v. Mijares (1971) 6 Cal.3d 415.

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