Possession Of A Controlled Substance

Possessing narcotics, like cocaine or heroin, is illegal in California. It is also illegal to possess prescription drugs like oxycodone, hydrocodone, codeine, and morphine without a legitimate prescription. If the authorities catch you with usable amounts of these narcotics, you will be subject to legal charges and penalties.

Since the passing of Prop. 47, possessing a regulated substance is a misdemeanor offense in many cases. Whereas the consequences for possessing a regulated substance might now seem lenient, being convicted of a misdemeanor could have severe long-term repercussions.

Even under Prop. 47 conditions, you may be subject to a maximum of 12 months in custody, contingent on the nature and quantity of the regulated substance. Additionally, not everybody can face lesser consequences thanks to the enactment of Prop. 47, meaning that some people can still be subject to felony charges.

Consequently, consulting a skilled drug crimes lawyer when charged will be helpful. At the Law Offices of Anna R. Yum, we can help protect your rights and minimize the penalties against you. In some situations, we can have the charges you face dismissed altogether; in others, we can have them or the consequences against you reduced. Call us if you are charged in San Diego for a consultation.

Understanding Controlled Substance Possession Charges

The general description of possessing a drug is having within your control a regulated substance that federal or state law has criminalized and for which you lack a legitimate prescription. Drug possession is an offense under HSC 11350a.

A controlled substance can also be referred to as a regulated substance. It is a chemical or drug whose use, manufacture, and possession are under government control per the U.S. Controlled Substances Act due to the likelihood of addiction or abuse. Some drugs are always unlawful, like meth, heroin, or cocaine, while others are prescription medications, for example, painkillers such as oxycodone and morphine. Many of these substances are described as illegal per 11350a HSC.

There are six different schedules of regulated substances, and each schedule is described by wide categories of amounts and types of drugs penalized similarly. They are:

• Schedule V narcotics—these are lesser-regulated prescription medications like low doses of codeine.
• Schedule IV narcotics, for example, most prescription medications like zolpidem and diazepam,
• Schedule III  narcotics, like anabolic steroids and pentobarbital
• Schedule II drugs, for example, morphine and raw opium
• Schedule I regulated substances, for example, mescaline, cocaine, and opiates

Note that marijuana and stimulants like methamphetamine are criminalized under distinct sections of the Penal Code, although they are typically treated similarly to other regulated substances under these schedules. Marijuana is criminalized under HSC 11357, while meth and other stimulants are criminalized under HSC 11377.

Element Making Up The Crime of Controlled Substance Possession

For the prosecuting attorney to prove you are criminally liable for possessing a drug, they must show beyond any reasonable doubt the following factors:

• The substance you had was a regulated substance
• You illegally had the regulated substance (meaning the drug is always unlawful or you lacked a valid prescription by a physician).
• You were aware of the drug’s presence
• You were aware of the stuff’s character, nature, and features as a regulated substance
• You had a usable quantity of the substance and not only residue

If the prosecutor cannot demonstrate any of the above factors, the judge must dismiss your charges. Here is a comprehensive legal definition of the key terms making up the elements of the drug possession crime:

Possession

You possess a regulated substance when you have control over it. Most people presume that you have to be holding or touching the regulated substance in your hands to be prosecuted for regulated substance possession. However, that is not true. Possession can be in three ways—actual, constructive, and joint.

Actual possession is what nearly everyone is familiar with when discussing possession. In this type, the controlled substance is physically on your person; for example, you are holding it in your hand, or it is in the backpack that is on you or the pocket of your trousers.

Constructive possession is less explicitly defined. You can generally be accused of constructive possession of drugs if the narcotic is in an area you can easily access, for example, in your gym locker, kitchen shelf, car, bag in a car trunk or storage unit, closet, or stashed underneath the chair in your living room. In a constructive possession case, the district attorney must demonstrate that the regulated substance was within your control, meaning you could easily retrieve it to assume actual possession.

The last form of possession is joint possession. This is an extension of constructive and actual possession. It is whereby two parties own a regulated substance. It is usually considered joint possession when the authorities find drugs in a shared space, and both individuals have constructive possession. The judge could convict you of joint possession in a situation where you raised money with your friend to buy a regulated substance.

It is worth noting that just because you consent to purchase a drug does not, on its own, mean you have assumed control of it.

Knowledge

For the judge to find you criminally liable for drug possession under 11350a HSC, you should have been aware of the controlled substance’s presence and that the stuff is actually a narcotic. The district attorney needs not to prove you were conscious of what specific drug you possessed. They must only prove you were conscious that the stuff you had was some form of narcotic.

Usable Quantity

A usable quantity is an amount that is sufficient to be utilized by you as a regulated substance. Useless debris and traces are not utilizable quantities of drugs. Conversely, a utilizable quantity need not be sufficient in strength or amount to intoxicate you.

Analog of a Regulated Substance

HSC 11350a applies to possessing regulated substances and an analog of a regulated substance. An analog of a regulated substance has either a chemical structure significantly resembling a controlled substance’s structure or an effect on the central nervous system that is greater or significantly similar to a controlled substance’s effect.

The Penalties for Possessing a Drug

According to Prop. 47, having any controlled substance on the abovementioned schedules is mostly deemed a misdemeanor, punishable by one year in incarceration and a fine not exceeding one thousand dollars. Sometimes, the court can sentence you to probation instead of incarceration.

If sentenced to probation, the judge will impose various terms based on the facts of your crime. These probation terms will include the following:

• Do community service
• Meet your probation officer regularly
• Violate no other law (except a traffic infraction)
• Agree to random drug tests

These are just a few of the probationary terms a judge can impose. Should you violate any of these terms, the judge can revoke your probation sentence and impose the maximum term for your crime allowed under the law.

Not everybody is eligible to face misdemeanor charges. Proposition 47 will only apply to defendants not registered as sexual offenders and those who have no prior convictions of other serious or violent offenses like murder. Accused persons who are not eligible can face either felony or misdemeanor charges contingent on the type of regulated substance and the quantity possessed. A conviction for a felony can result in a maximum of three years of incarceration.

Apart from incarceration and criminal penalties, there are other penalties you can face if convicted of possessing a regulated substance. Having a permanent criminal record because of a regulated substance possession conviction could result in challenges in the following aspects:

• Immigration—if you are in California on a green card or visa, it could be revoked if you are convicted of certain crimes, including aggravated felonies and crimes of moral turpitude. A felony-controlled substance conviction can result in deportation.
• Custody cases—if convicted of possessing a drug, a family law judge might look unfavorably at your conviction when deciding your child custody case.
• College or university financial aid—being convicted of drug possession can bar you from being awarded financial aid to pay for tertiary education. If you are presently a student, this might even bar you from finally graduating.
• Apartment renting—landlords may be reluctant to rent an apartment to you if your criminal background check discloses a conviction.
• Job searching—if you are convicted of possessing a drug, securing employment can be challenging. You might have to undergo a criminal background check that will reveal your conviction. Additionally, you cannot obtain security clearance to perform government work.
• Gun rights preservation—a felony HSC 11350a violation conviction will strip you of your firearm rights.

There are more consequences you could face. Your drug crimes lawyer can tell you in detail what you may be facing and assist in minimizing them.

Drug Diversion for Controlled Substance Possession Charges

The reason behind the enactment of Prop. 47 was to advocate for treatment rather than incarceration for non-violent drug offenders. Consequently, courts might be willing to consider you entering a drug diversion program if you are a first-time simple drug possession offender. You will usually be eligible for drug diversion if you are subject to a misdemeanor conviction.

Once you enroll in drug diversion, you will first enter a guilty plea for your drug possession charges, and your sentencing will be suspended while you finish a narcotics treatment program. The judge will dismiss your case when you complete the treatment course and satisfy other requirements. That means you will not need to disclose narcotics charges when seeking an apartment or a job. Your lawyer can assist you in fighting for you to enroll in drug diversion and avoid jail and other criminal penalties.

If you enter drug diversion, the following are things to be aware of:

• The program must be court-approved
• The program could last twelve or more months
• You will be required to take drug tests while enrolled in the treatment program
• You will be responsible for paying for a percentage of the costs of the treatment program that the court determines

Defenses To Charges of Simple Drug Possession

When accused of a severe crime like possessing a regulated substance, you must hire a skilled criminal defense lawyer to fight on your behalf using a compelling defense strategy. Based on the facts surrounding your specific case, several defenses are available that could lead to a reduction of your charges or a dismissal altogether. Some of these include the following:

Failure to Adhere to Police Procedures

The Fourth Amendment to the U.S. Constitution grants everyone the right against unreasonable searches and seizures by the authorities. To defend this right, the Supreme Court of the United States has provided a long list of decisions mandating law enforcement officers to adhere to given procedures and formalities when conducting arrests and traffic stops.

These formalities include having adequate probable cause to conduct an arrest, reading an arrestee their Miranda rights before police questioning, searching the car only for evidence of the offense for which a suspect is arrested and nothing more, and obtaining a legal search warrant before conducting any search of property or person.

Therefore, if law enforcement unlawfully acquired evidence by neglecting to comply with any of the above and other constitutional requirements, your lawyer can request that the judge exclude that evidence from the case, and the odds of your prevailing will significantly increase.

Legal Prescription

If you possess a legitimate, written prescription from a dentist, doctor, veterinarian, or podiatrist certified to practice in California, the judge should not find you criminally liable for possessing a drug. The burden of demonstrating that you never had a legitimate prescription lies with the district attorney, and they have to demonstrate this element beyond any reasonable doubt. If you are suffering from a health condition treated using an illegal drug, your lawyer can assert that you possessed a legal prescription and, thus, your having the drug was not unlawful.

Lack of Requisite Knowledge

The prosecuting attorney must prove you were aware of the character or nature of the drug you had as a regulated substance. Also, the judge cannot convict you under HSC 11350a if you did not know about the presence of the regulated substance in your possession or thought it was another item entirely and not a regulated substance. Your lawyer could assert that you did not have the required knowledge of the regulated substance’s presence, character, or nature and thus cannot be convicted of possession.

Consider this example: you ask your friend to lend you their vehicle for a weekend getaway, and the police pull you over for speeding. You agree that the police officer searches the car, and they find a significant amount of meth stored underneath the driver’s seat. Even though the prosecution can prove you had constructive possession because the car in which the controlled substance was found was under your control, the judge cannot convict you of regulated substance possession if you did not know that the substance was even there in the car when you borrowed it.

Lack of Possession or Control

To find you criminally liable for possessing a regulated substance, the prosecuting attorney must prove you possessed the drug or had control over it. As mentioned, possession could be actual, constructive, or joint. Your lawyer can assert that you never had the requisite control or possession of the narcotic to avoid a conviction.

It is worth knowing that either being able to access the narcotics or being close to them when the authorities discover them is insufficient to demonstrate possession on its own. Consider this example: the authorities raid your colleague’s home when you are together watching a match at his home and find cocaine stashed underneath the cushions of a couch. Even though you sat on that couch and were physically present at the location where the drug was discovered, you never had control or possession over the narcotics, and the judge should not convict you of possessing a regulated drug.

Momentary Possession

Momentarily possessing a drug for an otherwise legal reason is a legal defense to regulated substance possession charges under HSC 11350a. To argue this legal defense, your lawyer must demonstrate these facts:

• You had the drug only transitory or momentarily.
• You had the drug to dispose of, destroy, or abandon it, and
• You never intended to bar the authorities from taking the substance

To assert this legal defense, your legal counsel must successfully demonstrate all of the above elements with a preponderance of the evidence. That means the lawyer must demonstrate that it is more likely than not that each of the elements is true. A preponderance of the evidence is a lesser standard of proof than beyond any reasonable doubt.

Remember that no two cases can be precisely the same, so legal defenses that would work in one case might not be effective for you. When you talk to an experienced drug crimes defense lawyer, they will review the evidence and facts to determine what options and defenses are ideal. Consulting a narcotics defense lawyer enables you to better understand what to anticipate from your case and develop an effective strategy to beat the charges against you.

Expunging a Drug Possession Conviction

After you have completed your probation sentence for your drug possession conviction or successfully served your jail term (whichever the judge imposed), you can petition the court to expunge the conviction from your criminal record. According to PC Section 1203.4, a conviction expungement will free you from nearly all the penalties and disabilities arising from the conviction.

Related Offenses

Various offenses are related to drug possession violations due to shared elements. Consequently, based on your case facts, the prosecution can accuse you of any of these crimes instead of or alongside drug possession. Or, if you are charged with a crime more severe than drug possession, your lawyer can negotiate with the prosecution and convince them to reduce your crime down to controlled substance possession. Crimes related to drug possession include the following:

Possessing a Drug Intending to Sell—HSC 11351

HSC 11351 criminalizes possessing particular narcotics for sale. Note that, compared to this statute, you can only be convicted under 11350a HSC if you did not have the specific intention to sell the regulated substance.

Violating HSC 11351 is always a felony crime. A conviction carries either probation and 12 months in jail or up to four years in jail. You will also be subject to a court fine of 20,000 U.S. dollars. Various aggravating factors can lead to sentence enhancement. Unlike drug possession under HSC 11350a, you will not be eligible for drug diversion if convicted of drug possession for sale.

Selling and Transporting Controlled Substance—HSC 11352

HSC 11352 criminalizes selling regulated substances, transporting drugs for sale, giving drugs away, administering or furnishing narcotics to other individuals, and offering to perform any of the above acts. The scope of this law is much wider than that of HSC 11351 and HSC 11350a.

Violating HSc 11352 is a felony crime. A conviction carries up to five years in jail under the realignment program, a maximum fine of $20,000, and formal probation. Various aggravating circumstances can enhance these penalties. You will also not qualify for drug possession if convicted of selling or transporting drugs like you would if convicted of drug possession.

Under the Influence of Regulated Substance—HSC 11550

HSC 11550 criminalizes being intoxicated with a narcotic or regulated substance. Note that this law does not require you to have possessed a controlled substance to be criminally liable. The simple element of being intoxicated with the narcotic suffices.

Violating HSC 11550 is considered a misdemeanor punishable by 12 months in jail. Like simple drug possession, you may be eligible for drug diversion.

Contact an Experienced Drug Crimes Defense Counsel Near Me

The punishment for possessing a drug can be serious and possibly life-altering. If you are charged with the same, you want to contact a skilled narcotics attorney to review the law and your case facts carefully and provide you with the best possible representation. At the Law Offices of Anna R. Yum, we have decades of combined experience defending people under prosecution for drug possession in San Diego. We will thoroughly review your case and the prosecution’s evidence and assist you in winning your case. Contact us today at 619-493-3461 for a cost-free consultation and case evaluation.