The government is strict about criminal activities and even tougher on the war on drugs. If you have been arrested for possession for sale, your future reputation, finances, rights, life, and freedom can be negatively affected if found guilty. No criminal charges are worth the risk of taking the defense alone. The protection, guidance, representation, and advice offered by a lawyer come in handy. At Foos Gavin Law Firm, we aggressively fight for the defendants’ constitutional rights throughout Sacramento. When we meet you during your initial consultation, we can listen to you, put your mind at ease by answering your questions, and develop legal strategies to obtain the most favorable case outcome.
Defining Possession for Sale in California
HS 11351 makes it a crime to possess controlled substances intending to distribute. It is also illegal to purchase drugs intending to resell them.
Controlled substances are chemicals or drugs whose use, possession, and manufacture are government regulated per the U.S. Controlled Substance Act. Common examples of controlled substances include:
- Specific hallucinogenic substances
- Opiate and opiate derivatives
Additionally, the law bans people from buying or possessing prescribed narcotics for sale. The drugs include hydrocodone and codeine.
However, before convicting you of HS 11351, the prosecutor must prove the following elements of the crime:
- You purchased or possessed controlled substances
- You were aware of your conduct
- You knew the drugs were controlled substances
- The quantity you possessed was adequate to sell or use
You either purchased or possessed the narcotics intending to sell them
Demystifying the Legal Term “Possession”
In this context, the term “possession” means control. The control can be joint, constructive, or actual.
- Actual possession — Also referred to as physical possession, actual possession is straightforward and the easiest to identify. The defendant had the controlled substance on their person, probably in a purse, briefcase, or pocket.
- Constructive possession — A defendant has constructive possession if they can access the controlled substances or are entitled to control them, even though they do not possess the drugs. Typically, circumstantial evidence (proof that does not directly indicate guilt) establishes this type of possession.
- Joint possession — It happens in an instance where at least two individuals possess the drug.
The prosecutor cannot find a defendant guilty of HS 11351 unless the prosecution team proves that the defendant was aware that they possessed drugs and that these drugs were controlled substances. There are two types of knowledge, namely:
You Knew You Possessed the Drugs
If a relative hid their controlled substance in your office without telling you because they knew law enforcers had obtained a search warrant to search their home, car, or office, you could not be found guilty of the crime unless you consented.
The Knowledge that the Drugs were Controlled Substances
It is not a must that the defendant knows the drug’s name, chemical makeup, or expected effects of using the drug.
All that is required is that the accused knew the drug was an illegal controlled substance.
The judge can conclude that all the knowledge requirements have been met because the defendant possessed these drugs. Additionally, the prosecutor can assume knowledge based on the accused’s behavior after discovering narcotics.
The Drugs You Possessed Were Enough to Sell or Use
Residue or useless traces of drugs does not support your conviction. The drug’s quantity should be adequate so that the person who purchases it can take it as a narcotic.
Nevertheless, it is not a must that it is sufficient to affect its user.
Whether you plan to sell chemical substances is an essential element of the criminal charge. However, it does not imply that you intend to sell the narcotics personally. You can also be sentenced for the crime provided you intended somebody else to sell your controlled substances.
Suppose the prosecution team establishes that the accused possessed the drugs but cannot demonstrate that the defendant acted so intending to sell controlled substances. In that case, the judge will sentence the defendant for possession of controlled substances (HS 11350). The crime carries less severe penalties and offers a possibility to engage in a drug diversion program in place of incarceration.
Factors that Prove the Intent to Sell
Proving intent is challenging. However, there are factors that the prosecution team relies on to establish it. Generally, the prosecutor will engage expert witnesses to give opinions that you intend to sell the drugs.
Depending on the case facts, the following factors can be inconsistent with or indicative of the selling intention. Defense lawyers and prosecutors rely on these arguments when proving or negating the fact that you had the intent to sell the drugs.
The Drugs’ Quantity
If you have more narcotics than an average individual would personally take, the prosecution team will conclude that you possessed them for sale.
The downside of this factor is that habitual drug users can stock up if they have the means. Therefore, unless you have commercial operations out of your warehouse, having vast quantities of drugs is not proof of violation of HS 11351.
The Drug’s Packaging
Typically, the most common type of proof in HS 11351 criminal cases is how the narcotics are packaged. If they are packaged in several separate bundles, balloons, bindles, or baggies, the law enforcers will suspect the selling intentions.
You Were Drunk
If you are intoxicated during the arrest, that fact points to the controlled substances’ personal use instead of the selling intention. Nevertheless, most drug dealers are users. Therefore, this proof is not conclusive.
If you were drunk in a detectable manner, you could face under the influence of controlled substance charges under HS 11550.
The Absence or Existence of Drug Paraphernalia
Possessing drug paraphernalia is an offense in and itself per HS 11364.
Drug paraphernalia can be syringes, pipes, or any instruments used to inject, ingest, or consume the drug. Since drug paraphernalia usually symbolizes use, its existence can support the claim that narcotics are for personal use.
Nonetheless, if the cops find you possessing
- Measuring instruments
- Weighing scales
- Tools that package, separate, or dilute drugs,
the discovery will strengthen the prosecution’s argument that you possessed drugs for sale.
Penalties, Sentencing, and Consequences
Violation of HS 11351 is a California felony punishable by:
- Up to $20,000 in fines
- Two (2), three (3), or four (4) years in jail
- Probation and a one-year jail sentence
If the prosecutor proves that you intended to engage in several sales, you will face the above penalties concerning every intended sale.
When placed on probation, the judge will impose terms and conditions that apply to the crime like:
- Violating no other law
- Making frequent visits to the probation officer
- Performing community service
- Submitting to random drug testing
Violating any term can result in the court sentencing you to the maximum jail time allowed by law. Therefore, you require the guidance of a professional lawyer experienced in handling California drug crimes.
HS 11351 is a crime of moral turpitude that can result in deportation or being marked inadmissible if you are a legal alien or immigrant.
Aggravating Factors to the Criminal Charges
If a defendant is found guilty of purchasing or possessing a cocaine base for sale, they will pay a fine of $20,000 and spend up to five years in jail.
If convicted of HS 11351 and the involved drug is cocaine, heroin, or cocaine base, you will face the following additional penalties:
- Three (3) years if your narcotics weighed above one kilogram
- Five (5) years if the substance is more than four (4) kilograms
- Ten (10) years if the narcotics weighed above ten kilograms
- Fifteen (15) years if your drugs weighed more than twenty kilograms
- Twenty years if the narcotics were above forty kilograms
- Twenty-five years if your drug’s weight is above eighty kilograms
If you face an additional sentence under any of the above weight enhancements, you will pay a maximum fine of eight million dollars.
- a defendant was found guilty of HS 11351, and
- they have more than one previous felony conviction for another drug offense that is beyond personal use,
they will face additional three years in jail for every prior California felony conviction.
Drug diversion permitted per California drug court, PC 1000, and Proposition 36 allow a defendant charged with specific non-violent drug possession crimes to serve a sentence in a drug treatment program in place of incarceration. Your criminal charge will be dismissed if you complete the drug diversion program.
Nevertheless, not everyone is eligible for drug diversion. It does not apply to drug sale crimes, making it essential for your criminal defense lawyer to negotiate for a reduced charge. Since you cannot possess narcotics for sale without first having them, you can pursue a simple possession charge which is a lesser crime. If granted, you can engage in the program.
How to Fight the Criminal Charges
If you are accused of violating HS 11351, a skilled Sacramento defense lawyer can use various legal strategies to obtain the most favorable case results. Common legal defenses include the following:
The Police Officers Did Not Comply With Constitutional Procedures
Under the Fourth Amendment to the U.S. Constitution, you are entitled to be free from unreasonable search and seizure. The Supreme Court has set forth guidelines and procedures for searching. An unlawful search and seizure can stem from:
- A search executed without a search warrant
- The police conducted the search outside the warrant’s scope
- Unlawful detention (if a law enforcer did not have a right to stop you, any narcotics they found could not be used as proof against you).
Once your defense attorney thinks you are a victim of an unreasonable search and seizure, they should file a motion to suppress evidence (PC 1538.5). The criminal charges could be significantly reduced or dismissed if you win the motion.
Absence of Possession or Control
Before convicting you of this crime, the prosecutor must verify that you had control or possession of the controlled substances. If your defense lawyer can convince the prosecution or judge that you did not have the control or possession, you have a right to charge acquittal.
It is essential to be aware that either being near them during their discovery or having their access is insufficient to establish possession. For instance, you and your friends take a car to a party. On the way, the law enforcers pull your friend over for speeding. They consent to the motor vehicle search, and the law enforcer finds a bag with a lot of GHB stashed in the glove box. While you were sitting in your passenger seat and could access the glove box, your presence is not adequate to sentence you for the crime without establishing that you had control over their use.
The Defendant Did Not Intend to Sell the Drugs
While the defendant could have possessed the controlled substances, they might not have planned to sell the drugs. If the accused can establish that they only had the narcotics for personal use, they should be acquitted of the crime.
You can also persuade the court that even if you possessed the drugs, you had them because you planned to dispose of them.
You Had a Valid Prescription
If the defendant has a health condition that the drugs can treat, the defense legal counsel can argue that they have a valid prescription from a certified physician. However, they possessed a significantly more quantity than their medical needs, and the prosecutor could use it as proof to demonstrate that their intent was selling.
Why You Should Hire an Experienced Drug Defense Lawyer
While most people can build their homes, repair their motor vehicles, or purchase their homes, they do not perform surgical procedures on themselves for obvious reasons. Self-representation in court is akin to performing surgery on yourself. Any mistake made at any phase of the criminal proceeding can be hard to rectify and costly.
Common mistakes made by defendants include the following:
- Not acquiring pretrial discovery and not understanding how to use it
- Not knowing when and what motions are suitable and structuring them
- Failing to cross-examine witnesses properly
- Failing to introduce evidence properly
- Not knowing when and how to use expert testimonies
- Not selecting jury members wisely
Other reasons that make self-representation a wrong idea include:
- The prosecution team will not take your case seriously during plea bargain negotiation
- The prosecution is less likely to listen to your legal arguments since you do not have an attorney
- The prosecutor does not have an incentive to reduce your criminal charges
According to the Sixth Amendment to the U.S. Constitution, you have a right to legal representation in a criminal case where incarceration is possible. If you cannot afford a lawyer, the court can appoint a public defender to represent you free of charge.
During your arraignment (initial court hearing after your arrest), the judge will ask you if you have a lawyer or can afford one. If not, you will complete a statement attesting to your income, debts, and property. Please note that you can be employed and still be eligible for legal representation. If you qualify, the judge will appoint a public defender to represent you at all stages of the criminal process.
Importance of Hiring a Criminal Defense Lawyer
Discussed below are different reasons why you need legal representation:
You can find drug laws, penalties for their violations, and criminal judicial procedures in online sources and books. However, there are essential nuances and interpretations that only a qualified legal practitioner can see as far as real-life application and results are concerned. A seasoned legal counsel can interpret nuances of the law in your favor. They can help you understand the nature of your criminal charges, available legal strategies, and the possible case outcome.
For instance, if you are an immigrant, you risk facing deportation if you plead guilty to possession for sale without fully understanding the penalties. A competent and experienced defense lawyer can avoid this consequence.
Your defense counsel can also offer personal services by giving you a reality check and helping you deal with the fears and frustration that come with the criminal justice system.
Spending money to hire an experienced defense attorney is worth it. The professional can help you obtain the most favorable case outcome, which can help you keep your employment or protect you from losing your professional license. Even without being fired, missing work for extended court hearings or jail can result in a financial strain that you can avoid.
Finally, your experienced lawyer has developed a professional relationship with the prosecution team. Their relationship can allow your legal counsel to negotiate a better deal or lower bail amount.
What to Do If Accused of a Drug Crime
Violation of HS 11351 is a felony that carries fines, jail time, and punishment that will adversely affect your life even after serving time. To avoid the penalties, you should make the right decisions and take the appropriate steps throughout the criminal process. Here is what to do if charged with a crime.
Exercise the Right to Remain Silent
Probably you have heard of police in TV shows and movies: the police tell suspects that they have the right to remain silent.
The Fifth Amendment to the United States Constitution gives defendants the entitlement to refuse to incriminate themselves in a criminal case. The most effective method to avoid self-incrimination is fighting the urge to speak your way out of trouble and remaining silent.
When a cop asks you to give your side of the story, typically, either of the two situations exists. The first possibility is that the police believe they have adequate evidence to arrest you, even when you do not utter anything. The other possibility is that the police feel they do not have sufficient proof against you.
If the police have adequate proof against you, they will ask you to give your statement before arresting you. The officers want you to commit yourself to your story before obtaining a lawyer. Good police officers know that the more you speak about the case, the more likely you will say something that the prosecutor can use against you.
If arrested, refuse to answer any question without your defense lawyer present. You do not have to be hostile or rude towards the cops to exercise your right. Politely tell the law enforcers that you choose to exercise your right to remain silent.
Speak to a Skilled Criminal Defense Lawyer Immediately
Every minute you spend detained without a lawyer fighting for you hurts your criminal case. Therefore, it is essential that you retain a legal professional immediately after you are accused of the crime.
The prosecution knows the legal technicalities that you do not know and can try selling you on accepting a plea bargain that can seem like a great option. Having an attorney by your side can even the playing field and ensure you obtain what is in your best interests.
Ensure you give your lawyer a comprehensive and authentic account of events. The more accurate the details your counsel has, the better prepared they are to fight your criminal charges.
Make a List of Potential Witnesses
On top of writing down a statement of events, you should also note down the names, contact information, and addresses of any individual that can testify favorably on your behalf.
First, start with witnesses who witnessed the crime occur. Your lawyer can follow up with your witnesses to check whether their version of the story matches yours. Secondly, collect all individuals' names and contact details that can testify to your good character.
Remain Calm, Relaxed, and Polite
Remaining calm is probably the most challenging idea to recall, mainly if you are innocent or do not know why the law enforcers are questioning you.
Nevertheless, even when your rights have been violated or you are wrongfully arrested, do not argue with the officer or resist the arrest. Resisting can make you appear guilty and lead to additional criminal charges.
Find an Experienced Drug Defense Lawyer Near Me
Being arrested for possession of drugs for sale should not be taken lightly. A conviction carries a detrimental impact on your future and life goals. Additionally, the police will press you that you could be inclined to admit fault even when innocent. Do not be pressured. Instead, seek legal assistance. Hiring a skilled Sacramento attorney can make a significant difference in the case. Foos Gavin Law Firm is a premier practice whose aggressive approach and experience are invaluable to achieving the best possible case outcomes. Our legal team comprises former prosecutors and judges who understand the magnitude of a drug crime conviction, and we can do everything to minimize the effects of your criminal charges. Our mandate is to protect you, your constitutional rights, and your future. Please contact us at 916-779-3500 to schedule your initial no-obligation consultation and learn how we can help you.