Possession Of A Controlled Substance Overview
Possession of a controlled substance (e.g. an illicit drug) is a misdemeanor in California. The maximum penalties for drug possession are imprisonment in county jail for up to one year and/or a maximum fine of $1,000. However, possession of drugs for sale is a felony. Additionally, the most long-lasting consequence of being convicted of drug possession is the effect it will have on your record. Employers are generally reluctant to hire people with a record of criminal drug possession because they are concerned that person will be a liability to their company. Investing in a top-notch criminal defense attorney is your best option for avoiding these outcomes and protecting your record.
Health and Safety Code (HS)11350 is the California law that makes it a misdemeanor to knowingly possess a controlled substance. To possess “knowingly” means you must be aware you possess the controlled substance and be aware the substance is controlled. A controlled substance can either be an illicit street drug such as cocaine or prescription medication such as Vicodin if possessed without a valid prescription. Therefore if you are only accidentally in possession of a controlled substance you cannot be found guilty under this law. For example, a friend allows you to borrow his car and, unbeknownst to you, there is a bag of cocaine stored in the glove compartment. If the police pull you over and discover the cocaine you can successfully defend yourself by arguing that it is not your car and you did not know there was cocaine in the glove compartment. Or if a friend asks you to hold onto his “medication” for him and you are unaware the “medication” is actually Vicodin your friend does not have a prescription for you cannot be charged with possession because you had no reason to know possessing the substance was illegal. It is worth noting that possession of marijuana and methamphetamine are not covered under this code section but have their own separate, albeit similar, laws (marijuana possession is governed by HS 11357 and methamphetamine possession is governed by HS 11377).
Possession can either be actual or constructive. Actual possession occurs when a person literally possesses the controlled substance. For example, if someone has a controlled substance in their pocket, backpack or otherwise in their immediate area of control they have actual possession. Constructive possession occurs when a person stores a controlled substance in a place where they can exercise control over it even if they are not physically present. For example, if a person places illicit drugs in a storage locker they have constructive possession of the drugs even if that storage locker is located in another state. If a person keeps illicit drugs in their vacation home in San Francisco they have constructive possession even if they live in Los Angeles. Control is the key factor for both actual and constructive possession. If the drugs are found in a location you exercise control over, the police will charge you with possession.
The most common legal defenses against possession of a controlled substance are to deny possession, provide a lawful prescription or to allege the controlled substance was discovered through an unlawful search and seizure.
Showing you did not knowingly possess the controlled substance will prevent you from being convicted. A skilled attorney will use facts to show that you did not actually have possession of the controlled substance or that you were unaware the substance was in your possession.
Producing a lawful prescription for the controlled substance from a licensed medical professional is a complete defense to a possession charge. If you have a prescription, inform your attorney as soon as possible.
The Fourth Amendment to the U.S. Constitution prohibits government officials from conducting unreasonable search and seizures. If the controlled substance was discovered as a result of an unlawful search and seizure it cannot be admitted into evidence.
A search occurs when a government official investigates an area where a person has a reasonable expectation of privacy. For example, a police officer may not search an individual’s personal belongings such as their purse or backpack unless they have a warrant or an exception to the search warrant requirement applies. The most common search warrant exception allows officers to search an individual and their belongings within their immediate wingspan upon arresting that person. If you are arrested for any reason, police are entitled to search you and your belongings even without a warrant. Another common search warrant exception is the automobile exception that allows officers to search your vehicle, including the trunk, if they have probable cause to believe the vehicle contains evidence of a crime or contraband.
Probable cause requires the officer to have trustworthy facts sufficient for a reasonably prudent person to believe the vehicle contains evidence of a crime or contraband. For example, if an officer receives a tip from a reliable informant that someone is selling drugs out of a red pickup truck next to a local high school, the officer would be allowed to search your red pickup truck if you were pulled over near the local high school. However, a mere hunch or suspicion is not sufficient to rise to the level of probable cause. If an officer knows an individual has a reputation within the community for being a drug user this, by itself, is not sufficient to allow the officer to search that person for drugs. Probable cause must be supported by objective facts.
If your Constitutional rights were violated any evidence obtained as a result of that violation must be suppressed. Suppressing key evidence often results in the charges being dropped because the prosecution knows they cannot prove their case without that evidence. Shaffer Cormell knows what police officers are Constitutionally required to do to respect your rights and will take advantage of every mistake they made in the course of your investigation to get your charges dropped.
Possession of a controlled substance is typically charged as a misdemeanor and is punishable by imprisonment in county jail for up to one year, and/or a maximum fine of $1,000. However possession of a controlled substance can become a felony if you have a prior conviction for a sex crime or another serious felony. A felony conviction can be punished by up to three years in county jail.
A skilled attorney may be able to get your sentence reduced to attending a drug treatment program. If you are found guilty of non-violent drug possession, you may qualify to serve your sentence through a mandatory drug treatment program rather than a jail or prison sentence. If you are found guilty, Shaffer will work diligently to get you into a treatment program that will keep you out of jail or prison.
A drug possession conviction may also have negative immigration consequences. Under U.S. immigration law, a drug possession conviction can lead to a non-citizen being deported depending on the facts of the case. A drug possession conviction may also make an immigrant “inadmissible.” Each case is different and whether a drug possession conviction will lead to deportation will depend on the specific facts of your case.
A drug possession conviction may also have negative effects on your gun rights. Under California law, convicted felons are not allowed to possess a gun in California. As mentioned above, there are circumstances where possession of a controlled substance can become a felony and a conviction will result in losing the right to possess a firearm in California.
Investing in a top-notch criminal defense attorney is your best option for avoiding these outcomes.