Possession With Intent To Sell
A conviction for possession of a controlled substance with an intent to sell will result in severe legal penalties. Possession with intent to sell can result in costly fines and/or incarceration and will create a criminal record that will hamper a person’s social and professional life. Investing in an experience criminal defense attorney to advocate on your behalf is the best course of action for avoiding these negative outcomes. Southwest Legal employs top-rated Riverside county criminal defense attorneys with decades of experience defending those who have been charged with possession with intent to sell. If you’ve been charged with possession with intent to sell, call Southwest Legal today for a free consultation and take the first toward clearing your name!
Elements For Possession With Intent To Sell
Possession of a controlled substance with the intent to sell is charged as a felony under California Health and Safety Code 11351. A controlled substance is defined as any drug regulated by the United States Controlled Substances Act. Some common controlled substances include:
- Opiates such as Oxycontin or Vicodin
There are four elements that must be proved beyond a reasonable doubt to secure a conviction under HS 11351:
- The defendant had knowledge they possessed the drug
- The defendant had knowledge the drug was a controlled substance
- The defendant possessed the drug in a quantity sufficient to sell
- The defendant had the intent to sell the drug
What Is Possession?
The prosecution must prove the defendant knowingly possessed a drug. Possession in the legal sense is essentially the same as control; when a defendant is able to exert control over the drugs the defendant has possession of the drugs. The defendant must possess the drugs “knowingly” meaning they must be aware the drugs are in their possession. Any defendant who possesses drugs unintentionally cannot be convicted of possession with intent to sell. For example, a man borrows his friend’s car for the weekend. The friend left a bag of heroin in the glove compartment that the man did not know about. If the man is pulled over and the police discover the heroin, the man can successfully defend himself by showing he did not know the drugs were in the car. The defendant must have knowledge of the drugs in order to be convicted under HS 11351.
There are different types of possession: actual possession, constructive possession and joint possession.
Actual possession exists when the drugs are in the defendant’s area of immediate control. For example, person carrying a briefcase full of cocaine is in actual possession of the cocaine. Actual possession does not require a person to physically touch the drugs; actual possession exists anytime the drugs are in the person’s immediate area of control. For example, a driver driving with drugs in backseat of his car has actual possession of the drugs even though he is not physically touching them.
Constructive possession exists when the drugs are in a location where only the defendant can exert control over them even if that location is physically far away. For example, a drug importer stores large quantities of heroin in a warehouse out of state. The drug importer has constructive possession of the heroin even though it is located in another state. Constructive possession allows defendants who do not have actual possession of drugs to be convicted if the drugs are in a location where the defendant can exercise control over them.
Joint possession exists when the drugs are in a location where multiple people can exert control over them. For example, a woman knows her husband is a drug dealer and allows him to store his drugs in their home. Both the woman and the husband have joint possession of the drugs because they are stored in their common living area. Joint possession is significant because it creates the possibility of someone being charged who never intended to sell drugs. In the above example, the wife could be charged with possessing the drugs even though she did not intend to sell them because she allowed the drugs to be stored in a location where she could exercise control over them.
Knowledge The Drug Is A Controlled Substance
A defendant must know the drug is a controlled substance in order to be convicted under HS 11351. The defendant does not need to know the exact name of the drug or its chemical composition, so long as the defendant knows the drug is illegal they can be convicted under HS 11351. For example, a gangster hires a young teenager to “run errands” for him. The gangster hands the teen a bag of white powder and tells him its baking powder that he needs to deliver to a specific address. If the teen is searched by police and they discover the powder, which is actually cocaine, the teen can avoid being convicted by showing he believed it to be baking powder. However, prosecutors can use the defendant’s actions to show they knew the substance was illegal. In the above example, if the teen attempted to hide the powder from the police it would suggest that he knew it was not really baking powder and some kind of illegal drug.
Possession Of A Sufficient Quantity To Sell
A defendant must possess a quantity of drugs sufficient to sell in order to be convicted under HS 11351. Drug residue or trace amounts are insufficient to support a conviction for possession with intent to sell. However, a small quantity of drugs that is sufficient for use is enough to be convicted under HS 11351. For example, police discover a small bindle of heroin in a man’s pocket. A single small bindle of heroin is enough to charge the man with possession with intent to sell.
The Intent To Sell
The most significant element of possession with intent to sell is the actual intent to sell. Regular drug possession without an intent to sell is charged under HS 11350 and is a less serious offense. The court will weigh totality of the circumstances in each case to determine whether the defendant intended to sell the drugs in their possession. Courts will consider whether the quantity of the drugs suggests the defendant intended them for personal use or for sale. A defendant caught with a gram of heroin is significantly less likely to be charged with possession with intent to sell than a defendant caught with a kilo of heroin. Courts will also weigh other factors as well such as how the drugs are packaged. A defendant who has packaged small quantities of drugs in multiple separate baggies is more likely to be charged with possession with intent to sell. The presence of drug paraphernalia is another factor that affects whether a defendant had the intent to sell. Drug use paraphernalia such as a syringe or a pipe will suggest the drugs were for personal use. However, scales weights or other measuring implements suggest the drugs were intended for sale. Whether the defendant themself is under the influence of drugs is another factor that will affect whether the drugs will be determined for personal use or for sale. A drug user who is on drugs is more likely to possess drugs for personal use than someone who does not use the drugs in their possession. The court will weigh all the facts in each case in determining whether the defendant intended to sell drugs.
What Are The Penalties For Possession With Intent To Sell?
HS 11351 is a felony in California and can result in up to 4 years and/or a fine of up to $20,000.
Each drug sale is punished individually. For example, a defendant is arrested with 120 grams of heroin divided into four 30-gram bindles. The prosecution can show the defendant intended to sell each bindle to a different buyer. The defendant is now facing up to 16 years in jail and a $80,000 fine because each sale is punished separately.
Sentencing enhancements are also available under certain circumstances that will result in more severe punishments. For instance, a defendant who intends to sell cocaine base (also known as “crack cocaine”) will face an additional year in jail. Defendants intending to sell heroin, cocaine or cocaine base will also face sentencing enhancements based off the amount of drugs in their possession:
- Possession greater than 1 kilogram adds an additional 3 years of incarceration
- Possession greater than 4 kilograms adds an additional 5 years of incarceration
- Possession greater than 10 kilograms adds an additional 10 years of incarceration
- Possession greater than 20 kilograms adds an additional 15 years of incarceration
- Possession greater than 40 kilograms adds an additional 20 years of incarceration
- Possession greater than 80 kilograms adds an additional 25 years of incarceration
Any defendant possessing more than 1 kilogram of a controlled substance will also face a maximum fine of $8,000,000.
Furthermore, any prior convictions for drug crimes other than personal use will add an additional 3 years per prior conviction. For example, a man is convicted for possession with intent to sell but also has a prior conviction for possession with intent to sell. Therefore the man could serve 7 years in jail (4 years for his current conviction plus an additional 3 years for the prior conviction).
Legal Defenses For Possession With Intent To Sell
Some common legal defenses for possession with intent to sell include:
- The contraband was discovered as a result of an illegal search or seizure
- The defendant did not possess the contraband
- The defendant lacked knowledge
- The defendant lacked intention to sell
Any evidence discovered as a result of an illegal search or seizure cannot be admitted in court. If the defendant can prevent the drugs from being admitted into evidence by showing they were discovered illegally they will typically avoid being convicted. The Fourth Amendment of the US Constitution and California’s search and seizure laws place limits on how law enforcement can conduct criminal investigations. These limits include requiring a valid search warrant before searching areas where an individual has a reasonable expectation of privacy. Furthermore, the search warrant must state with particularity the area to be searched and law enforcement may not exceed the scope of the warrant. For example, a police receive a valid search warrant to search a man’s basement for contraband. However during the search, a police officer also searches the man’s upstairs closet and discovers a kilo of cocaine hidden inside. The cocaine cannot be admitted into evidence because the search warrant only authorized searching the basement. The cocaine was discovered as a result of an illegal search and therefore it cannot be used against the defendant in court.
A defendant can also defend themselves by showing the drugs were never actually in their possession. For example, a defendant is in the process of purchasing drugs from an undercover police officer. The defendant hands over his money and is waiting to receive the drugs when he gets arrested. Although the defendant clearly intended to possess the drugs, the fact he did not actually possess them i.e. exert control over them will prevent him from being convicted. Possession must be actual or constructive to secure a conviction for possession with intent to sell.
A defendant can defeat a charge for possession with intent to sell by showing they did not know the substance in their possession was illegal. For example, a man asks his friend to hold onto his “medication” for him and the friend agrees. Unbeknownst to the friend, the “medication” is actual illegally obtained Oxycontin the man does not have a prescription for. If the friend is arrested but can show he genuinely believed the drugs were legal medication he cannot be convicted for possession with intent to sell.
A defendant cannot be convicted of possession with intent to sell if they did not intend to sell. Drug possession for personal use is a less serious crime than possession with intent to sell and therefore sometimes the best defense is to claim the drugs were for the defendant’s personal use. For example, a man is arrested while in possession of several crack cocaine “rocks.” The man can argue that he intended to consume the drugs himself rather than sell them and avoid the more severe penalties that result from a possession with intent to sell conviction.
What Should You Do If You’ve Been Charged With Possession With Intent To Sell?
A conviction for possession with intent to sell will have life-altering consequences. Costly fines, incarceration, and a criminal record are all potential outcomes after being charged with possession with intent to sell. The best way to avoid these painful penalties is to hire a skilled criminal defense attorney who will guide you through the whole process. The Southwest Legal team of top-rated Riverside County criminal defense attorneys has decades of experience defending those who have been charged with possession with intent to sell. If you’ve been charged with possession with intent to sell, call Southwest Legal today for a free consultation and begin the process of beating your case!