California “Methamphetamine Sales” Law | Health & Safety Code 11378 HS

October 7, 2015

In California, possession of methamphetamine for sale is charged under health & safety code 11378 hs.[1] It is a straight felony that cannot be reduced to a misdemeanor.

The prosecutor does not need to prove you actually sold methamphetamine. Instead, the prosecutor must prove that you possessed methamphetamine and intended to sell it. Usually the prosecutor calls a drug expert to testify that the following factors are indicia of sales:

  • Large sums of money
  • Large amount of substance
  • Digital scales
  • Pay-owe sheets
  • Text messages evidencing prior sales
  • Controlled buy with a confidential informant
  • Eye witnessing a sale while surveilling

Selling methamphetamine is not only a crime in California, but also a federal crime. Consequently, in certain circumstances, you can face both state and federal charges for the same offense.

It is not uncommon for someone charged with methamphetamine sales to also be charged with

What is the Prosecutor Required to Prove for Methamphetamine Sales – HS 11378?

According to CALCRIM 2302, in order to be found guilty of HS 11378, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. You were in actual or constructive possession of methamphetamine;
  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 HS 11378 Charges?

  • 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. Usually, the 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 methamphetamine if they did not know of its presence. For instance, someone may have left methamphetamine in your car 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 you 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 law enforcement violated your Fourth Amendment Moreover, drug cases usually carry detention and 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 Methamphetamine Sales in California?

HS 11378 is a straight felony punishable by 16 months, 2, or 3 years in the county jail. Other sentencing consequences may include:

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

What Are Examples of Possession of Methamphetamine for Sale?

  • Police raided Dan’s apartment after they suspected he was dealing methamphetamine. Police discovered firearms, several ounces of methamphetamine, and a digital scale. Thereafter, police author a search warrant to justify their entry into Dan’s apartment. Here, Dan would be charged with HS 11378 given the indicia of methamphetamine sales. However, Dan’s defense attorney would argue the police unlawfully and prematurely entered Dan’s apartment prior to obtaining a warrant. Dan will have a colorable claim of suppressing all the evidence law enforcement seized.
  • Billy was at his friend’s house. The police raided the home and detained all the occupants, including Billy. Police discovered over a kilogram of methamphetamine on the living room table – the same room Billy was in when police entered. He was charged with possession of a controlled substance with the intent to sell. Here, Billy will argue that there is insufficient evidence to support a conviction because police have no further evidence other than Billy’s presence. Mere proximity to the drugs, presence on the property where it is located, or associating with other people who control the drugs is insufficient to support a conviction.[4]

Contact Us to Schedule a Free Consultation

Contact us if you have been charged or are under investigation for possession of methamphetamine with the intent to sell under health & safety code 11378 hs. 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.

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 Footnotes:

[1] Health & Safe Code 11378 – defined: “Except as otherwise provided in Article 7 (commencing with Section 4110) of Chapter 9 of Division 2 of the Business and Professions Code, a person who possesses for sale a controlled substance that meets any of the following criteria shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code:

(1) The substance is classified in Schedule III, IV, or V and is not a narcotic drug, except the substance specified in subdivision (g) of Section 11056.

(2) The substance is specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d).

(3) The substance is specified in paragraph (11) of subdivision (c) of Section 11056.

(4) The substance is specified in paragraph (2) or (3) of subdivision (f) of Section 11054.

(5) The substance is specified in subdivision (d), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055.”

[2] See CALCRIM No. 2302

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

[4] See People v. Savage (1954) 128 Cal.App.2d 123.

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