Possession

How Is Drug Possession Defined in California?

Drug possession, simple possession, or possession of a controlled substance all describe a violation of California Health & Safety Code Section 11350. HSC 11350 prohibits, under state law, possession of any substance that the US Controlled Substances Act has already made illegal to possess under federal law.

It's true that simple possession is normally a misdemeanor offense in California, since Prop 47, but it still can bring jail time, fines, a permanent criminal record, difficulty finding gainful employment, difficulty in getting an apartment to lease, rejection on college enrollment and financial aid applications, child custody consequences, and other long-term negative results. Plus, there are instances in which drug possession can be charged as a felony as well.

Drug possession under HSC 11350 can include illegal drugs or pain killers and the like for which you have no valid prescription. And it can still include marijuana, if in the right quantities or forms.

Whether the drug you possessed was Schedule I or II or generally less severe drugs in Schedules II through V, drug possession charges can still apply.

What Must the Prosecution Prove?

In order to gain a conviction on the charge of drug possession (HSC 11350), the prosecutor must prove the following elements of the crime beyond all reasonable doubt:

• You did in fact possess a controlled substance as defined under the US Controlled Substances Act.
• You did not have any legal right to possess the substance in question (like a prescription or a police officer confiscating illegal drugs.)
• You were aware of the presence of the drug and of its nature as a controlled substance.
• You were in possession of a "usable quantity" of the drug, as opposed to "mere traces."

Note that you can "possess" a drug in three distinct ways: actual, constructive, or joint possession.

Actual possession means you have the drug physically on your person. Constructive possession means you had control over the drug, had access to it, stored it somewhere, or had others controlling the drug in your behalf. Joint possession simply means you and at least one other person had actual and/or constructive possession of the drug.

But also realize that it is not enough for a prosecutor to simply show a drug was on you or near you. You must have willfully and knowingly possessed the controlled substance in one way or another to be guilty of drug possession.

And you must have been aware of both the drug's presence and its nature. That doesn't mean you had to know its harmful effects or its chemical makeup, but simply that it was an illegal drug. If you thought it was flour or sugar, for example, you are not guilty. Or, if someone planted the drug on you or in your apartment or car, and you didn't know about it, you are not guilty.

As to the requirement that you possessed a "usable" amount of the controlled substance, this does not mean it had to be a large amount. It just means that mere traces or residues of drugs are not enough to gain a conviction. There had to be enough of the drug there for someone to reasonably use, and enough of it so that the drug would have its usual expected effects.

Possible Penalties

The consequences of a drug possession conviction under HSC 11350 go far beyond the actual sentence, as we have already noted above. It affects one's ability to get a job, go to college, get approved for an apartment lease, and more. But the legal consequences are certainly among the worst of the total array of consequences.

Normally, simple drug possession is charged as a misdemeanor in California. It is punishable by up to 12 months in county jail and a fine of up to $1,000.

Before Prop 47 was passed by Californians in 2014, all drug possession charges were felonies. Note that if you were convicted of a felony drug possession charge in California before passage of Prop 47, you can petition to get the charge reduced to a misdemeanor (and the sentence correspondingly reduced.)

Also note that even a misdemeanor level conviction for drug possession can have serious immigration consequences, including possible deportation. A Leah Legal, we can help non-citizens facing these charges navigate both legal and immigration fronts of the issue.

However, there are still some situations where drug possession can be a felony in California. If one already has a prior conviction on his/her record for a serious felony (like murder or vehicular manslaughter, for example) or for any sex crime that put you on the state sex offender registration list, then a drug possession crime becomes a felony, punishable by from 16 months to 3 years in state prison.

Common Defense Strategies

At Leah Legal, we have deep experience in defending all manner of drug possession charges in L.A. and Southern California courts. And while it's true that no two cases are quite the same and every defense must be "custom built," it is also true that many of the same basic defense strategies work again and again.

We have helped get many drug possession charges dropped or dismissed by challenging a prosecutor's weak case early and forcefully. We have also gained many acquittals after presenting evidence, testimonies, and legal arguments in court. And finally, we have often gotten charges and penalties reduced in favorable plea deals, where that was the best possible option.

Here are some of our most commonly used legal defense strategies in California drug possession cases:

1. Lack of "Possession"

In some cases, there may have no actual, constructive, or joint possession of a controlled substance, despite an arrest on that charge. It may be that the drugs were planted on you by someone else or left in your car, baggage, locker, or apartment by someone else.

2. Lack of Knowledge

It may be you weren't even aware of the presence of the drug nor of its nature as a controlled substance. If you didn't realize the drug was illegal to possess, this defense may be viable. If you hid the drug, refused a drug test, or have a previous drug crime record, this defense will be more difficult to use.

3. Valid Prescription

For some types of controlled substances, you can legally possess them and use them so long as you have a valid prescription from a doctor to do so. In that case, you must have used the drug only in the amount, frequency, and manner as prescribed.

You cannot have possessed more drugs than were prescribed, used a single prescription multiple times, or used a fraud prescription (even if the doctor agreed to fraudulently prescribe the drug). Nor can you use a prescription made out to someone else as a defense.

4. Temporary Possession

In some instances, you can use the defense of mere temporary, transient possession as a defense against a drug possession charge. If you only possessed the controlled substance briefly while in the process of disposing of them or turning them in to police, this defense can work.

But, if you were disposing of the illegal drugs to prevent police from finding and confiscating them, this defense won't fly at all.

5. Police Misconduct

If police violated your rights during the arrest, it is often possible to get evidence against you declared inadmissible in court. And that often makes the case unwinnable to the prosecution.

If police conducted an illegal search and seizure, evidence illegally obtained can be banned from consideration in court. If the stop was illegal, no search warrant was obtained, police searched beyond the limits of the warrant, "excessive force" was used to seize the drugs, or if evidence was planted or fabricated, you can get a dismissal and win your case. We will file a motion to suppress evidence pre-trial so that no trial need ever take place.

6. False Accusation

Obviously, any untrue charge of drug possession is a false accusation, but what we mean here is when someone reports you to the police trying to get you arrested for drug possession, when the story was just "made up."

It may even be that "fake evidence" was used to frame you and make you look guilty. If so, we will know how to unravel the evidence of the prosecution, cross-examine witnesses against you, and get to the bottom of what really happened.

Drug Diversion Programs & Plea Deals

In California, most people arrested and charged with simple possession of a controlled substance can avail themselves of a drug diversion program. Drug diversion programs are available to those charged with misdemeanor (not felony) level drug possession.

The purpose of California's drug diversion programs is to help those struggling with drug addiction to overcome it, to free up space in state prisons and county jails, to allow the justice system to focus more on felony and violent crimes, and to save the taxpayer money.

At Leah Legal, we know how to maximize your chances of getting accepted onto a drug diversion program and may often make this a part of a favorable plea deal.

To qualify for a diversion program, you must agree to plead "guilty" to the drug possession charge, but the actual sentencing will be "delayed." In the interim, you must enroll in and complete a drug abuse treatment program of some sort and fulfill various other stipulations. It's essentially like being on parole. If you fulfill these obligations, your drug charge will ultimately be dismissed and you won't have a criminal record that could keep you from getting a good job.

Also, you won't have to go to jail or prison if you qualify for drug diversion. 

Finally, note that many times, someone charged with a higher level drug crime like possession for sale or sale or distribution of a controlled substance, can get the charge reduced to simple possession and get a much lighter sentence.

We at Leah Legal understand how to fight hard for and win a dismissal or acquittal wherever possible. But we also have well honed negotiation skills we can put to work in your behalf in order to get you the least severe conviction and sentence (including getting approved for a drug diversion program), where that is the best obtainable option.

Contact Us Today for Immediate Assistance

At Leah Legal, we have deep experience in successfully defending against California drug possession charges. We know how to build a solid defense and win the best possible outcome to every case we take on.

And we don't shy away from "the tough cases" but can also effectively defend against aggravated or repeat-offense allegations. 

Contact us today, anytime 24/7/365, and we will be happy to give you immediate assistance. Call us at 818-484-1100 for a free, no-obligation legal consultation on the details of your case.