While we have the intricate knowledge of California drug law necessary to win your case, it also helps you to feel less confused and overwhelmed by the legal process if you understand it a little bit better. Therefore, we have given you the basics on the California Health & Safety Code (CHSC) violation drug possession with intent to sell just below:
Definition of Drug Possession with Intent to Sell
California Health and Safety Code Section 11351 criminalizes the possession of certain controlled substances, along with the intention to later sell them, as a felony. A controlled substance is defined as one regulated by the U.S. Controlled Substances Act, including such illegal drugs as cocaine, heroin, opiates, GHB, peyote, and certain hallucinogens, as well as certain prescription drugs (if abused) like Oxycontin, Codeine, and Vicodin.
The legal elements of the crime, which the prosecutor must prove, are:
- You did, in fact, possess a controlled substance.
- You were aware of the identity of the drug as a controlled substance.
- You possessed a sufficient quantity to make selling the drug possible.
- You had an intention to sell the illegally possessed drug.
Possible Penalties for Possession With Intent to Sell
Unlike simple possession, possession with intent to sell is not a "wobbler," meaning that it cannot be reduced to a misdemeanor, though it is possible to obtain probation and as little as one year in a county jail instead of the full penalty. However, there is no possibility of getting into a drug diversion program, which would replace incarceration time with drug treatment, nor of being eligible for drug court.
Possible sentences include:
- Two to four years in a county jail
- A fine of up to $20,000
- Both the fine and jail term
Factors that can make the punishment even more severe include:
- A prior drug-crime felony on your record (other than simple possession). This adds three years to the jail term.
- The type/amount of drug you possessed and intended to sell. Larger amounts and more powerful drugs will generally bring stricter sentencing.
- Multiple sale attempts. Each count will be charged and sentenced separately.
- If you are not a U.S. citizen, a conviction will get you deported.
What Does the Prosecutor Have to Prove?
The elements of the crime that are listed above must be proven beyond doubt by the prosecution in order to gain a conviction. However, the legal definitions of certain of these elements are not what the non-lawyer might expect.
"Possession" involves simply the idea of "control." You do not have the drugs on your person to "possess" them. Actual possession means you have the drugs on your person, but constructive possession, which means you have access to them and control over them without physically touching them also counts as possession. Joint possession, wherein two or more people possess the same drugs, also counts.
"Knowledge" of the drug's nature need not mean you knew its precise name, its chemical composition, nor the particular effects it has on the body/mind. It only need be the defendant knew it was an illegal, controlled substance.
"Intent to sell" need not mean you intended to personally sell the drug in question. An intent to have someone else sell an illegal narcotic for you still counts legally as intent to sell.
Also, "sufficient quantity to sell" does not mean a large quantity. It can be an amount so small that it could not seriously affect the person it would be sold to, so long as there was enough of the drug for "to be consumed" by the user.
What Defense Strategies Are Available?
Attorney Anna R. Yum has past experience as a prosecutor and has worked in the D.A.'s office, and she knows how to anticipate and counter the moves that will be made by the prosecution.
The most common defense strategies used to defend against the charge of drug possession with intent to sell are:
- The defendant did not possess a controlled substance. It was a drug that looked like a controlled substance, but it was a case of mistaken identity.
- The defendant himself was mistakenly identified. It was someone else who committed the crime.
- The defendant did not realize the drugs were present. Perhaps, he/she was borrowing a friend's car in which the drugs were stored or someone planted the drugs in his/her suitcase or place of residence.
- Though the defendant illegally possessed a controlled substance, it was merely for personal use with no intent to sell. If this defense succeeds, a conviction on the lesser charge of personal possession of a controlled substance will bring much lighter sentencing.
- There were only "useless traces/residues" of the drug, not nearly enough to sell or use.
- The evidence was obtained through illegal search and seizure or the rights of the defendant were violated during the arrest.
- The entire incident never occurred. Police simply falsified evidence in order to make the charge.
Other charges that are often charged instead of or in addition to the charge of drug possession with intent to sell include:
- Simple possession (HS 11350): If the prosecution proves you possessed drugs but cannot prove you intended to sell them, you would be convicted of simple possession. This is a misdemeanor with a maximum of one year in county jail and a fine as high as $1,000. However, simple possession qualifies for drug court and the Prop 36 drug diversion programs.
- Drug sales & transport (HS 11352): Actually selling or transporting a controlled substance is a felony that can get you three to five years in jail, nine years in jail if you crossed three or more county lines, and up to a $20,000 fine. There is no eligibility for drug diversion with this crime.
- Sale of an imitation drug (HS 109575 & HS 11355): Selling, possessing, or manufacturing a "bunk" drug that is "intentionally indistinguishable" from the real controlled substance is a misdemeanor offense in California. Punishments can include up to six months in jail and/or a fine of up to $1,000.
- Possession of marijuana for sale (HS 11359): In California, it is a felony to possess the drug marijuana in any form with the intent/attempt to sell it. While some states have legalized the recreational use of marijuana, California is not among them. Sentencing for this crime can include up to 16 months in jail and/or a fine of up to $10,000.
- Possession for sale of synthetic cannabis/stimulants (HS 11357.5 & HS 11375.5): Synthetically produced cannabis or other "designer drugs" is illegal in California. The crime is a misdemeanor that is punishable by as much as six months' jail time and/or a fine of up to $1,000.
- Operating a "drug house" (HS 11366): This is a wobbler crime that can be charged as either felony/misdemeanor. Which charge is filed will depend on the details of each case. The charge of operating a drug house frequently accompanies that of possession with intent to sell. If charged as a felony, operating a drug house can bring 16 months to three years in state prison.
Contact Us for Help Today
When facing a charge with potential consequences as high as that of drug possession with intent to sell, you need the assistance of an experienced drug crimes defense attorney like Anna R. Yum.
As a long-time criminal defense attorney and a former prosecutor who once worked at the D.A.'s office, Anna Yum knows well "both sides of the fence." She is uniquely equipped to defend against a wide range of drug-related charges, including that of possession for sale.
The Law Offices of Anna R. Yum serve San Diego and surrounding areas and all of southern California with affordable, skilled, and trustworthy drug crimes defense. For a free legal consultation with Anna Yum, call us 24/7 at 619-233-4433 or use our online contact form.