Drug Crimes

According to the California Health and Safety Code 11053-11058, there are five different categories or Schedules of a controlled substance. Each Schedule is based on the potential for abuse, safety concerns, addictiveness, and medical application. Schedule I drugs present the highest danger in the potential for abuse and safety and generally are regarded to have no medical purpose. These substances include: heroin, lysergic acid diethylamide (commonly referred to as LSD or acid), marijuana (cannabis), ecstasy, MDMA, peyote, psilocybin (commonly referred to as shrooms or magic mushrooms), Mescaline, and many more. Schedule II drugs include: cocaine, methadone, oxycodone, fentanyl, Adderall, Ritalin, and many more. These drugs are identified by their high potential for abuse, but less potential than a Schedule I substance, and generally have some kind of accepted modern medical use. Schedule III substances similarly have less abuse potential than Schedule II and Schedule IV less than Schedule III and Schedule V less than Schedule IV. Some examples of substances in Schedules III through V include: Xanax, Ambien, Vicodin, ketamine, anabolic steroids, Valium, and many more.

Health and Safety Code 11350 states that possession of any of a variety of different drug types is a misdemeanor. While many of these substances are Schedule I or II substances, you can be charged with possession by also being in possession of prescription drugs without a prescription. Conviction under the possession of a controlled substance may result in up to three years prison sentence. However, most first-time offenders are eligible for Proposition 36 or Penal Code 1000, which allows for a prison sentence to instead be served at a drug treatment or rehabilitation program.

In special cases of HS 11350, you may be eligible to plead down a felony charge to a misdemeanor charge, if your offense occurred before November of 2014. If you are currently serving a felony charge for HS 11350, talk to your lawyer about changing your conviction to a misdemeanor.

The California Penal Code 1000, allows for nonviolent, first-time offenders to be sentenced to a drug diversion or treatment program in place of jail time. Drug diversion functions by delaying sentencing. To be considered for PC 1000 Drug Diversion, the defendant must plead guilty to the possession charge, but Instead of being sentenced to jail time for a drug crime, the case is instead delayed, pending completion of a court-appointed drug treatment program (typically 18 months in length). On successful completion of the program, the case is then dismissed rather than processed as a typical offense. However, if the program is not successfully completed, then the sentencing occurs as usual, and the defendant may face jail time.

Since PC 1000 is only available for first time offenders, if a person has previously been convicted of drug crimes, they may instead qualify for what is called the Proposition 36 program.

Prop. 36 allows for eligible individuals convicted of various non-violent controlled substance possession charges under HS 11350 and being under the influence of a controlled substance under HS 11550 (but not intent to sell, sale, transportation or manufacturing/cultivation under HS 11351, 11352, 11379, etc.) to receive a probationary sentence instead of jail time. Prop 36 is discussed in PC Sections 3063.1 and in 1210- 1210.1. Proposition 36 programs typically come with several stipulations. Defendants mandatorily have to participate in and complete a certified or licensed treatment program. Now if the individual fails to complete the program or is in violation of any terms and/or conditions of probation, then the probation can be void and the individual might be required to serve more time which may lead to incarceration.

Much like PC 1000, if a defendant in a Prop. 36 program is able to successfully complete their treatment program and additionally has complied with all other stipulations of probation, he or she may petition to have their case dismissed.

Both PC 1000 and Prop. 36 require the defendant to plead guilty. Therefore, it is important to speak with an experienced drug crimes attorney to see if one of these diversion programs may be a good option, or you if you may be able to present a stronger not-guilty plea.

Health and Safety Code 11351 states that it is a felony to possess a controlled substance with the intent of selling them. Generally, because of the volume of the substance and the intent to distribute the substance for profit, Intent to Sell is regarded as a more serious offense than possession, and therefore does not qualify you for Penal Code 1000.

However, in addition to volume, there needs to be clear evidence that you were intending to distribute the controlled substance in order for the charge to stick. Officers may look around a crime scene and may find a large quantity of the controlled substance, packaging with intent for distribution, large amounts of unlaundered cash, or even weapons, and determine intent to sell. Unfortunately, it can be easy to confuse intent to sell with possession for the intent of personal use.

Health and Safety Code 11352 states that it is a felony to sell, transport, administer, or even give away, an illegal narcotic by importing it into the state of California. However, sometimes officers will utilize an undercover sting to generate evidence of a sale or transportation which can be in violation of entrapment laws in California. In other cases, officers may claim to have been a firsthand witness to a sale or transaction but it is difficult to determine exactly what is happening by watching from a distance. Officers may have confused a seller with a buyer and make an improper arrest or it is possible that they were witness to something that wasn’t an illegal transaction at all.

Health and Safety Code 11364 states that it is a misdemeanor to possess a pipe, device, contrivance, instrument, or paraphernalia to use to inject or smoke a controlled substance.

A conviction under HS 11364 can result in up to six months of jail time, but often these cases qualify for diversion under Proposition 36 or Penal Code 1000. Additionally, many times a HS 11364 offense is the result of an improper search and seizure which often can result in dismissing the case.

Health and Safety Code 11377 makes possession of methamphetamine illegal, commonly referred to as meth or crystal meth. Proposition 47 has changed this offense to a misdemeanor, but intent to sell, sale, transportation, or manufacturing methamphetamine (colloquially referred to as “cooking meth”) is considered a felony.

Possession of Ecstasy is also written into HS 11377 and is also considered to be a misdemeanor under Proposition 47.

Other portions of the Health and Safety Code that deal with methamphetamine are HS 11378, possession or purchase of methamphetamines for sale, which like intent to sell narcotics, is classified as a felony and is punishable by up to three years of jail time. Similarly, HS 11379 deals with the transportation or sale of methamphetamine which also applies to giving away or administering methamphetamine. Under HS 11379, you could be facing felony charges and up to nine years in state prison.

Health and Safety Code 11379.6 refers to the practice of manufacturing or processing a controlled substance. These offenses are considered to be felonies and typically will result in heavier sentencing (up to 7 years in state prison) and can carry heavier sentencing the larger the quantity of controlled substance involved. However, to be charged with HS 11379.6, the individual needs to have actually begun to make the controlled substance. Simply researching the process or gathering the right materials and equipment will result in a different charge. Specifically, HS 11383 and 11383.5 cover possession of materials for the manufacture of a controlled substance. These laws make possession of certain chemicals a felony with intent to manufacture PCP or methamphetamine.

Similar to manufacturing of drugs and narcotics, is HS 11363, cultivation of peyote. This law states that it is a crime to plant, cultivate, harvest or process peyote, which is a hallucinogenic drug and a Schedule I controlled substance. Peyote is often used in Native American religious ceremonies, but unfortunately, cultivation of peyote is a wobbler and can be considered as a misdemeanor or felony offense.

Health and Safety 11550 states that it is a misdemeanor offense to be under the influence of a controlled substance. While this law mostly refers to Schedule I and II substances, it can also apply to prescription drugs such as Xanax or Adderall, if the individual does not have a prescription for the controlled substance. HS 11550 is often accompanied by an HS 11350 possession charge, as it stands to reason that if you used a controlled substance, you most likely were in possession of it. Many HS 11550 cases qualify for Prop. 36 or PC 1000.

California Vehicle Code 23152(a) generally prohibits driving under the influence of alcohol or drugs/other controlled substances. You can be arrested for driving under the influence of drugs, even including prescription medications, if your ability to drive and make decisions is impaired. Because of the common nature of prescription medication in our healthcare system, driving while taking a prescription drug can often be a wrongful accusation. If you believe you are wrongfully being accused of driving under the influence, contact a lawyer specializing in drug crimes in your area.

Beginning January 1st, 2018, adults at least 21 years of age are permitted to possess up to one ounce of marijuana or eight grams of concentrated cannabis for medical or recreational use in the state of California. Proposition 215 allows for certain types of heavily regulated businesses (e.g. dispensaries) to cultivate, sell and possess, what would previously be recognized as felony quantities of cannabis. Generally, the penalty for possession of a small quantity of marijuana over the legal limit is still enforced, but relatively light. Most cases result in a small fine. With the changes in the law via Proposition 215, it is important to contact an experienced drug crimes attorney who may be able to alter or lighten a current sentence being served for possession of cannabis.

While most people typically associate drug crimes with stereotypically “illegal drugs” such as cocaine, heroin, and marijuana, illegally obtaining or abusing a prescription medication (e.g. opioid painkillers like Oxycodone or Hydrocodone) can also lead to a drug offense. People attempt to defraud a healthcare professional to get a prescription for a controlled substance can be charged with prescription fraud. Similarly, if you alter a valid prescription, especially for controlled narcotics, you may face prescription fraud charges. Another possible source of a drug offense is when doctors and other healthcare professionals are charged for prescribing controlled substances to someone displaying drug seeking behavior. All of these situations are exceptionally tricky and highly dependent on a skilled lawyer for a successful defense.

When it comes to legal defense, both possession and intent to sell charges can be subjective in definition. Under possession charges, the prosecutor must prove beyond a reasonable doubt several key points:

1) You possessed a controlled substance unlawfully;

2) You were aware of the presence of a controlled substance;

3) You were conscious of the nature and illegality of the controlled substance;

4) The controlled substance in question is indeed a controlled substance;

5) The controlled substance was present in a usable quantity.

Under the law, you do not have to physically be holding or touching something to determine possession of said object. Possession may constitute control over said substance by being present in your home, vehicle, or other location that you are aware of. That being said, talking about the sale of a controlled substance does not technically constitute being in your possession unless the controlled substance has left possession of another individual (i.e. you may have been in the process of or discussed purchasing a controlled substance, but did not have possession of it).

Additionally, a possession charge must prove that you were aware of the presence of a controlled substance. For example, if a controlled substance was found in your home, then the prosecutor must prove that the controlled substance was there with your knowledge in order to constitute possession. Additionally, the prosecutor must prove that you understood what the substance was and the illegality of possession. For example, if you found a quantity of an illicit substance and either presumed it was harmless or legal (i.e. not a controlled substance or a prescribed medication), the burden of proof is on the prosecutor to prove that you understood the legality of the substance in order to constitute possession.

Although somewhat self-explanatory, it is important that the controlled substance in question is actually a controlled substance. For example, if you had a small bag of cocaine in your possession, but that “cocaine” was actually found to be to be flour or baking soda, then technically you were never in possession of a controlled substance.

Finally, the controlled substance must be present in a usable quality. This particular portion is difficult to use as a defense because a usable quality is subjective and dependent on the substance. However, it is safe to say that trace amounts of a drug found in a non-consumable/consumed state (i.e. stuck to your clothing or shoes) will not likely constitute possession unless accompanied by other circumstance.

One of the simpler defenses for a drug crime would be to argue that possession/consumption was unwilling or unknowing. If you are unaware that a friend is using a drug and he or she asks you to hold their jacket with a controlled substance in the pocket, then you have a valid defense against conscious possession of a controlled substance. Alternatively, if you were in possession of a friend’s “prescription medication” and was unaware that the medication was illegally obtained or some other substance, you may have a valid defense.

A more complicated defense against some of the more severe offenses is illegal search and seizure and entrapment. An illegal search and seizure occur when an officer searches you without a valid warrant or if they lack probable cause of criminal activity. Even if the search is allowed by warrant, you may be able to utilize an illegal search and seizure defense if the search went beyond the limitations of the warrant. For example, if drugs were found in your vehicle, but the warrant specifically stated that search was permitted in your home, you may have a valid illegal search and seizure defense.

Another valid defense is entrapment. Entrapment entails being coerced into violating a law by an officer. For example, if you possessed a valid prescription and a police officer, undercover pressures you into selling a portion of your legally obtained prescription medication, you would likely have a valid defense via police entrapment.

If you or someone you know in Vista, CA or North San Diego County, is facing charges for drug offenses, contact the Vista Criminal Attorney Law Firm at 760-691-1551 for a free consultation. Vista Criminal Attorney Law Firm consists of experts who will be able to determine the best course of action using the facts of your specific case.