Drug possession is the crime of willfully possessing an illegal, controlled substance, or chemicals for the cultivation or manufacture of such drugs. You may be guilty of drug possession whether the drugs are in your immediate possession or in a property over which you have control. Drug possession laws in California are strict and may vary depending on the intent of possessing a controlled substance (either for personal use or distribution). The Law Offices of Jonathan Franklin will help you fight charges of drug possession. We offer criminal defense services out of Beverly Hills to the entire Los Angeles County community.
Overview of Drug Possession
The California Health and Safety Code 11350 prohibits the possession of controlled substances such as narcotics, illegal drugs such as cocaine, and prescription drugs such as Vicodin and Oxytocin. The legalization of marijuana as a recreational drug changed the existing possession laws, which are currently covered in HS 11357. Health and Safety Code 11377 covers the possession of methamphetamines and stimulants.
In addition, you may be charged with either actual, constructive, or joint possession of drugs. Actual possession is when the drugs are on your person or in a property that you control. Constructive possession involves multiple offenders with knowledge or access to drugs. When you and at least one other person has actual or constructive possession of drugs, then you jointly possess the controlled substance.
Elements of Drug Possession
For you to get a conviction for drug possession, the prosecution must prove the following elements:
- You had control or the right to exercise control over the drug (actual, constructive, or joint possession)
- You possessed the drug unlawfully
- You were aware of the presence of the drug
- You knew that the drug was a controlled substance
- The drug was in sufficient amounts to be used as a controlled substance. Under this requirement, the drug has to be in a usable quantity, not necessarily be in quantity enough to trigger a "narcotic effect."
The prosecution has to prove these elements beyond a reasonable doubt, which gives you and your attorney a chance to prepare a strong legal defense.
Fighting Drug Possession Charges
Fighting the charges against you is the only chance you have to avoid a criminal conviction or to have your charges reduced. A drug crimes lawyer can use one or more of the following defenses:
- You Have a Valid Prescription
If you are facing charges for possession of drugs such as oxycontin and Vicodin, you can challenge the prosecution by providing a valid prescription. In addition to providing a valid prescription, you have to show that the amount you had was the right amount for the purpose of the prescription.
- You Did Not Possess the Drugs
You have only violated California drug laws if the drugs are found on your person or within your control. For example, if the police found the drugs in your apartment, the prosecution has to prove that the drugs belong to you and not your roommate.
- You Were Not Aware of the Presence of the Drugs
You are guilty of drug possession if you have knowledge of the possession of the drugs and their nature as a controlled substance. When these two elements are missing, then you cannot be charged with drug possession. You can use this defense if someone borrowed your property, and he or she left drugs in it without your knowledge. The defense can also apply if you were not aware that the substance in your possession was an illegal drug.
The prosecution may use circumstantial evidence such as your prior drug record, your refusal to take a drug test or running from the cops as evidence of your knowledge about the presence or nature of the drugs.
- You Possessed the Drugs Temporarily
You could use the temporary possession defense if you had the drugs for a short time. The defense applies if you intended to dispose of the drugs to prevent their unlawful possession by another person. Your lawyer must also prove that you were not trying to dispose of them to prevent seizure by law enforcement.
- The Police Found the Drugs During an Illegal Search or Seizure
The Fourth Amendment protects every American from illegal search and seizure. If the police raided your home or property and found the drugs, then the evidence cannot be used against you. California search and seizure laws provide legal guidelines to which law enforcement officials must adhere. These guidelines include the following:
- The officer must have a valid search warrant
- The search must be done within the scope of the warrant
The officer may be exempted from having a warrant if:
- You give consent to search of the property of which you have the authority to control
- The search is part of a lawful arrest either for protecting the arresting officers or evidence
- There is an imminent and serious threat to life or property
- The vehicle is under lawful impoundment for a traffic violation
- The item is under plain view and is incriminating
Illegal searches and seizures violate your right to privacy, and your lawyer can introduce a motion to suppress any evidence from an illegal search or seizure. If the evidence is the foundation on which the case is built, then the charges against you will be dropped.
- The Substance is Not a Drug
The prosecution must prove that the substance they found on you is an illegal drug. Therefore, they have to conduct a crime lab analysis and have the crime lab technician testify in court.
- Entrapment by a Law Enforcement Officer
Entrapment occurs when a law official causes another person to commit a crime the person would otherwise have not committed. To use entrapment as a defense, you have to prove that:
- You would not have committed the crime
- The law enforcement official or informant encouraged the crime
Entrapment as a legal defense is likely to be successful where you do not have a history of similar crimes.
Sentencing and Penalties
The penalties for drug possession depend on whether it is charged as a misdemeanor or a felony. The charge you get depends on the circumstances of the case and your criminal history.
The penalties for a misdemeanor include a maximum term of one year in county jail and a fine of up to $1000.
The court will convict you of a felony if you have a previous felony conviction for a sex crime, murder, vehicular manslaughter while intoxicated or are a registered sex offender.
Drug possession is a deportable crime for immigrants. In fact, the law considers drug possession by an immigrant as an aggravated felony which can subject the immigrant to removal hearings. In case you are deported, you cannot be readmitted into the US.
You may also be eligible for several drug diversion programs, including the following:
- Proposition 36
Proposition 36 is a form of alternative sentencing allowed for non-violent drug offenders. Prop 36 allows defendants to serve in a drug treatment program instead of jail. A drug treatment program may involve various elements such as drug education, outpatient or residential treatment, aftercare services, and detoxification.
People eligible for prop 36 are first and second-time offenders of non-violent drug crimes. In addition, they must be addicted to or under the influence of the substance, or possess it for personal use.
Some of the drugs include cocaine, marijuana, ecstasy, GHB, peyote, heroin, and methamphetamines, among others. Crimes that qualify for prop 36 include:
- Possession of a controlled substance for sale
- Selling or transporting drugs
- Selling or transporting marijuana
- Possession, transportation, or sale of methamphetamine
You may not qualify for a Prop 36 sentencing if:
- You have a prior conviction for a serious or violent felony that qualifies for a strike under the Three Strikes Law
- You had a simultaneous conviction for a misdemeanor or felony
- You had a dangerous weapon or a firearm while committing the non-violent drug offense
- You have attended two Prop 36 programs
- You do not want to participate in a drug treatment program as a condition for probation
After you successfully complete your program and have substantially fulfilled the terms of your probation, the court will dismiss your conviction. In most cases, you can legally say that you have never had a conviction. However, you are not able to possess or carry a concealed weapon.
- Deferred Entry of Judgment
PC 1000 deferred entry of judgment is a form of pretrial release available for non-violent drug offenders. You are eligible for deferred entry of judgment if you are facing charges for simple possession. The offenses, which can qualify for a pretrial release, include the following:
- Possession of a controlled substance
- Unlawful possession of cannabis
- Possession of drug paraphernalia
- Aiding the use of an illegal controlled substance
- Possession of methamphetamines
- Being under the influence of a controlled substance
- Fraudulently acquiring or using a prescription
The drugs covered under this program include cocaine, heroin, GBH, Peyote, ecstasy, marijuana, and prescription drugs. When deciding whether you are eligible for the program, the court seeks to determine whether you possessed for simple use and if the program will benefit you.
If you qualify for the program, the prosecution will advise your defense lawyer in writing. The prosecution will explain the procedures involved in pretrial diversion and the roles of the probation department, the prosecution, and the court. In addition, the defendant will have to meet some of the conditions, such as:
- Take a not guilty plea
- Waive the right to a speedy trial and a jury trial
The written notice informs about the defendant's rights after the program, conditions, and consequences of termination and the notice about the dismissal of charges upon the successful completion of the program.
You may choose to consent to the program or proceed to trial. If you proceed to trial and are found guilty, you may request enrollment in a proposition 36-diversion program.
- California Drug Court
California drug court is an initiative by the justice system to remove non-violent drug offenders from the criminal justice system. The program aims at reducing drug crimes and improving the lives of communities and defendants. There are three categories of California drug courts, including the following:
- Adult drug courts that target adult offenders by taking them through intensive rehabilitation and drug treatment program for at least one year
- Dependency court that aims at providing drug treatment services to parents to allow them to care for their children safely
- Juvenile courts, which provide treatment and therapy to minors and their parents, respectively. The goal of juvenile drug courts is to encourage long-term sobriety and provide drug intervention services.
The courts seek to:
- Reduce drug use and repeat offenses
- Promote long-term recovery by integrating rehabilitation methods with drug treatment
- Save the criminal justice system by reducing the number of people who go to jail or prison
California drug courts offer four models through which defendants can access alternative sentencing. These include:
- Pre-plea model where defendants participate without pleading guilty to the charges against him or her
- Post plea model where the defendant participates after entering a guilty plea
- Post-adjudication model which targets repeat offenders
- The civil model which targets civil actions mostly in child custody battles
The program may come with additional conditions, which the defendant should meet:
- Seeking and maintaining employment
- Attending school
- Subscribing to drug testing
Upon the successful completion of the program, the court dismisses the charges against you. The charges will be reinstated if you fail to complete the program.
Find a Drug Crimes Lawyer Near Me
California drug laws are complicated. You can be arrested for a crime you have not committed. Furthermore, evidence obtained illegally can be used against you if you don’t know your rights and defenses.
The Law Offices of Jonathan Franklin understands the ins and outs of California drug laws. We have built our practice around defending suspected drug offenders in Los Angeles and Beverly Hills from the negative consequences of a conviction.
If you are facing drug possession charges, contact us at 310-273-9600 for a free consultation. Our team will provide you with the information you need to understand the charges against you, the possible defenses, and the options you may have. We will also stand by you throughout the trial and post-trial period to ensure that you get the best possible outcome.