Possession of a controlled substance is a crime. In addition, California law criminalizes the possession of specified ingredients or precursors that can be used to manufacture certain illegal substances such as PCP or methamphetamine. The governing laws for drug possession are California Health and Safety Code Sections 11350, 11377, and 11357.
Health and Safety Code Section 11350 makes it illegal to possess opiates such as heroin and opium, and other opiates that can be possessed only with a valid prescription such as OxyContin and Vicodin.
Neither marijuana nor stimulants are covered by Health and Safety Code 11350. California Health and Safety Code sections 11357 and 11358 apply to possession of marijuana. Possession of less than an ounce of marijuana is a violation of Health and Safety Code Section 11357 and is an infraction only punishable with a fine. Possession of more than an ounce of marijuana is a misdemeanor and is punishable by up to a year in county jail. Someone can possess amounts of marijuana consistent with personal use with a valid prescription for the use of medical marijuana.
Possession of methamphetamines and other stimulants is covered by Health and Safety Code section 11377.
The State must prove beyond a reasonable doubt that the accused:
- unlawfully possessed a controlled substance;
- knew of its presence;
- knew that was a controlled substance; and
- possessed a usable amount.
Possession can be either actual or indirect. Actual possession is if the drug is found on your or in close proximity such that it is obvious that you had control of the drugs. Indirect Possession is when you may not have had the drugs on you but you had the control of the drugs or the right to control them. Examples of indirect possession would be if you are driving the car and the drugs are found in the trunk of the car or if the drugs are found on another person but you both intended on using the drugs.
A usable amount can be however small, as long as the quantity can be used. The amount does not even have to be enough to get someone high. However, it is not a usable amount if it is only residue or traces of the drug.
- Authorization to be in possession of the controlled substance via a prescription issued by a doctor;
- The Defendant was unaware of the presence of the drugs (did not actually possess the drugs);
- The Defendant did not know what the drugs were;
- The Defendant only had the drugs temporarily so that they could get rid of them (You are allowed to possess drugs for a short time in order to dispose of them. This does not, however, apply if you only ditched the drugs to avoid discovery or apprehension by the police.);
- There was not a usable amount of drugs; and/or
- The drugs were found during an illegal search.
Actual Case No. 1
Sally was found passed out in her car in a parking lot late at night. When the police confronted Sally she was disoriented and dropped a burnt piece of tin foil by her feet. The police knew that tin foil was often used as paraphernalia in smoking heroin. Sally was arrested for possession of a controlled substance. I was able to convince the district attorney that the amount of drugs that was found was not a usable amount and get the charges dismissed.
Actual Case No. 2
Bill was stopped for expired registration on his vehicle. When asked, Bob consented to the police searching his car. The police found five grams of methamphetamine contained in one baggie and $400 in twenties on Bill. I was able to persuade the district attorney to reduce the original charges of possession for sales to a charge of simple possession based on the fact that there were no other indications of sale and that the drugs were inside of one baggie. Also, we demonstrated to the D.A. that the money was cash paid to Bill for a carpentry job. Once the charge was reduced to simple possession Bill became eligible for drug diversion. Bill ended up successfully completing the drug diversion classes and his charges were dismissed.
The passage of proposition 47 on November 4, 2014, drastically changed the penalties for possession of controlled substances in California. Proposition 47 made the possession of controlled substances a misdemeanor, reducing the sentence to three years of probation and a maximum of one year in jail. Under proposition 47, even those that have been convicted of the above crimes as felonies, can file a petition to have the charges reduced to misdemeanors retroactively. The only exceptions to eligibility apply to possession by certain offenders with past convictions for a narrow range of violent crimes and to possession by registered sex offenders. In addition, those accused of possession of controlled substances on a first offense are usually eligible for drug diversion which is called Deferred Entry of Judgement under Penal Code Section 1000. Also, if you are ineligible for Deferred Entry of Judgement because you have a prior conviction of a drug offense you might be eligible for treatment under Proposition 36. Proposition 36 offers a more intensive drug treatment program but if the program is successfully completed the charges will be dismissed and cannot be used against to deny you any employment.
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