By California law, drug possession is defined as being found with narcotics, illegal drugs, or prescription drugs that you do not have a valid prescription for. There are three different classifications of possession: “actual possession,” wherein you have the drugs with you on your person; “constructive possession,” wherein drugs are found in an area that you exercise control over, such as your room or office; and “joint possession,” wherein you and at least one other person share actual or constructive possession of a controlled substance. Furthermore, drug possession is divided into two categories—simple possession and possession with intent to sell. Intent to sell has penalties that are more significant in a court of law. By California Health and Safety Code 11350 (HS 11350), the punishment for misdemeanor possession of the following drugs is up to one year in a county jail and/or a $1,000 fine:
- Opiates (hydrocodone, oxycodone, codeine)
As a felony, possession of the above controlled substances carries a 16-month, two-year, or three-year sentence in a county jail. Additionally, California law criminalizes the possession of substances used to manufacture illicit drugs, such as methamphetamine and PCP. Marijuana possession is penalized by a separate law (HS 11357) and has a fine of up to $500 for 28.5 grams or less, with an added year of jail time along with the fine if one is found with more than 28.5 grams.
Drug possession can be a very daunting charge, especially if a prosecutor believes you have intent to sell. In cases like these, the guidance and support of a qualified attorney is paramount to reaching a non-guilty trial verdict. If you are facing drug possession charges, do not hesitate to call Spolin Law at (310) 424-5816 for a free consultation.
Punishments for Drug Possession
The penalties for drug possession depend on the defendant’s criminal history and the circumstances surrounding how the drugs were found. Because of voter-initiated Proposition 47, crimes involving drug possession for personal use are now only misdemeanors and carry the penalties outlined in the first section. If eligible, a person charged with misdemeanor drug possession may also complete a drug diversion program in lieu of their jail time as an alternative form of sentencing.
However, if the defendant has a prior conviction of a serious felony, such as murder, intoxicated vehicular manslaughter, sex violence, or is a registered sex offender, the charge for possession increases to a felony and is punishable by a 16-month, two-year, or three-year prison sentence. Additionally, under HS 11370.1, it is a felony to be found in possession of controlled substances while armed with a firearm. This charge carries two to four years in a state prison and a possible $10,000 fine.
In terms of civil penalties, drug possession is a deportable offense and the state may revoke your immigration status if you are convicted. Possession can also lead to loss of employment and revocation of a professional license.
Defenses to Drug Possession
Before being convicted of possession charges, prosecutors must prove that you knew of the drug’s presence and were aware of its status as a controlled substance. Some defenses that could apply in possession allegations include:
- You did not actually possess the drug – If you did not have actual, constructive, or joint possession of a controlled substance, this line of defense may be reasonable. For example, if you were pulled over by a police officer on the highway and upon inspection he finds a heroin balloon on the side of the road next to your vehicle. You did not have constructive possession of the drug since you do not exercise control over the side of the road. Therefore, you may argue that you did not actually have possession.
- Lack of knowledge – Sometimes, a person is found to be in possession of a drug entirely without their knowledge. Perhaps your roommate lent you a pair of his jeans without realizing that he left a small amount of cocaine in the pocket. Later, drug dogs on campus sniff out the drugs and you are charged with misdemeanor drug possession. In this case, you may argue that you were completely oblivious to the drug’s presence on your person.
- Illegal search and seizure – Police must have a California search warrant in order to conduct a search on your property. If drugs are found in your possession without prior attainment of a warrant or if police go beyond the scope of a warrant, an attorney may file a motion to suppress evidence since it was illegally obtained. Say police obtain a warrant to search your apartment on your landlord’s suspicion of drug possession. They find nothing in your apartment, but later search your car and come across LSD. Because the police went beyond the scope of their warrant, you may use illegal search and seizure as an argument in your defense.
- There was not a “usable amount” of the drug found – Possession charges require that you have enough of the drug to use it as a controlled substance. This means residue or ashes are not enough to warrant a possession conviction. While the amount does not have to be enough to produce a narcotic effect, the drug found must at least be a consumable amount to warrant a conviction.
If you were unaware of a drug’s status as a controlled or illegal substance, you may similarly use your ignorance as a defense in possession charges. To learn more about defenses to drug possession, call (310) 424-5816 to discuss the particulars of your case.
Contact a Drug Possession Attorney
Drug possession charges may have long-lasting consequences that can deter future employment prospects, revoke professional licenses, and result in mandatory drug treatment programs. The representation of a successful attorney may mean the difference between a non-guilty trial verdict and a maximum jail sentence. Spolin Law’s record of success is due in part to our hiring of investigators and analysts when necessary, as well as the effective filing of legal motions. If you are facing drug possession charges, reach out to us at (310) 424-5816 to discuss your options.