Possessing controlled substances for sale in California could result in hefty fines and lengthy imprisonment upon conviction. The possession is usually determined by the drug’s amount and the nature of the drugs. For example, if you possess a drug subdivided into small portions, then there is a possibility you intend to sell them.
However, to face conviction for the crime, the prosecution team has to prove the elements of the crime beyond a reasonable doubt, especially when you were not caught red-handed. You want to seek legal help from a skilled criminal defense attorney if you face arrest for this crime. So, if your loved one is arrested, the Long Beach Criminal Attorney is here to help. Our attorneys have helped many clients facing drug crimes in Long Beach, CA.
The Legal Meaning of Possessing Controlled Substance for Sale in California
Possessing controlled substances with the intent of selling them is banned under California HSC 11351. Buying or possessing any controlled substance to sell may trigger a sentence under the law. The controlled substances involve chemicals or drugs whose processing, manufacturing, or possessing is controlled by the country’s controlled substance laws. Possession of controlled substances is classified as infractions, felonies, or misdemeanors. The law classifies the substances under five schedules. The schedules are:
- Schedule 1 Drugs - Opiates, Hallucinogens, and Heroin.
- Schedule 2 Drugs - Opium, Oxycodone, and Morphine.
- Schedule 3 Drugs - Anabolic Steroids and Pentobarbital.
- Schedule 4 Drugs - Zolpidem and Diazepam.
- Schedule 5 drugs include low doses of codeine mixed with non-narcotic medicinal ingredients.
If the police arrest you with possession of controlled substances for sale, consult the statute classifying your offense. Afterward, check the California Code, which outlines the drugs and the amount that suits each group. The statutes are California HSC 11058 and HSC 11053.
What The Prosecutor Must Prove in Possession of Controlled Substance for Sale Case
An arrest for possession of the substance doesn’t simply mean you will face conviction. To face conviction for possessing controlled substances, the prosecutor must prove the following elements:
- You bought or possessed the controlled substance
- You were aware of the possession of the substance
- You had information about the controlled substance
- You fully possessed the item with an intent to sell them
- The quantity of the drug was enough for sale or use
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You Possessed a Controlled Substance
The law considers possession as having control over the substance. The control may either be joint, constructive, or actual.
Actual Possession
It means you have physical control over the substance in question. For instance, the drug may be discovered in your pocket or body bag. A charge of actual possession is tough to defend, especially when your defense attorney tries to convince the prosecutor you never possessed the substance.
Joint Possession
If you and another person possess the alleged drug, you are considered to have joint possession. But if the substance was discovered in an apartment you share with a friend, the judge may consider it a constructive possession.
Constructive Possession
It means the arresting officers discovered the controlled substance in a site you have control over, but you don't have full physical possession of the drug. The prosecution team has a hard time convincing the court you had control over the drug. Being close to the people with the drug or the substances themselves doesn’t necessarily establish possession.
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You Were Aware Of The Existence of The Controlled Substance
For you to face conviction for possessing a controlled substance for sale, the prosecution team should provide evidence to show you had knowledge of the drug. Alternatively, knowing the substance was illegal means you knew the drug's name, ingredients, and effects. After proving you knew the controlled substance, you may then face conviction.
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You Possessed Large Quantities of The Drugs As Opposed By The Law
The court considers the controlled substance is available for sale when it’s in large quantities. The drug amount should be different from traces or residues since there is no possibility they will be used in a way that violates California HSC 11350. The court considers small amounts as usable quantities when they can't affect judgment when consumed in the amount.
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You Possessed The Substance with The Intent to Sell
The prosecutor has to prove you intended to sell the substance under HSC 11351. However, if the prosecution team demonstrates you possessed the prohibited drug but fails to prove you intended to sell them, In that case, you might face lesser crime for ownership under HSC 11350. The prosecutor will consider the following factors to prove you controlled the substance to sell it:
- A large amount of the alleged substances surpassed the allowed amount for personal use
- Large amounts of money
- You possessed scales or any other instrument used to measure the weight of drugs
- Numerous phone calls
- Several plastic bags or containers
- Address book or buyers list
Penalties for Possessing Controlled Substances in California
Violating HSC 11351 in California is considered a felony. If you face conviction for the crime, you may face a probation term not exceeding four years or a $20,000 fine. Also, if the prosecution team proves you intended to practice multiple sales, then the court may punish you for any intended sale. If you are a non-American, you may also face deportation.
Aggravating Factors
Under California laws, numerous factors may result in additional penalties. For example, if you face conviction for possessing or selling cocaine for sale, you face imprisonment between 3 and 5 years. Apart from that, you may face extra penalties for controlled substances like heroin and cocaine. The penalties are:
- Additional three years when the drug was more than a kilogram
- Extra 5 years when the substance is above 4 kg
- Ten years when the substance is more than 10 kg
- Additional 15 years when the drug is above twenty kilograms
- Extra 20 years when the drug weighs more than 40 kilograms
- Additional 25 years when the drug weighs more than 80 kilograms
When you receive an extra sentence according to weight enhancement, you will face a fine not exceeding $8,000,000.
Probation Terms
A probation possibility is among the potential penalties for HSC 11351 charge. After being put on probation, the law requires you to follow certain conditions and terms. The conditions and terms include:
- Engaging in community service
- Visiting your probation expert as per the probation conditions
- Avoiding law violations
- Complying to regular drug testing
The above are several terms the court may place on you. Violation of the terms might trigger long imprisonment periods and more fines.
Possession for Use vs. Possession for Sale
Both possession for use or sale doesn’t involve the actual sale or transfer of the drug. The two crimes relate since the defendants should have the intent to possess. But proving intent is challenging. Thus it's proved through the crime’s surrounding elements. The prosecutor relies on various factors to determine the defendant’s intent to possess the controlled substance. That’s why the prosecutor should rely on narcotic officers or expert witnesses to provide a professional opinion on whether the defendant had the intent to sell the substance. The professional's witness will provide their view to the following factors:
The Illegal Drugs Quantity
If the alleged drug in your possession weighed above the average amount required by the law, the prosecutor might assume you intended to sell them. However, the only flaw which might hinder their assumption is you were stocking the substance for private use. When you run a business like a warehouse, and the police discover significant amounts of the substances, they may argue the drug was prepared for sale.
Presence or Absence of Drug Paraphernalia
If you possessed drug apparatus during the arrest, you might face another separate charge. Drug paraphernalia constitutes syringes, pipes, and other tools that help in the consumption of illegal drugs. As the apparatus indicates a possibility of controlled substances, the prosecutor may use their presence as evidence to support their claim. Again, if the prosecutor's investigations discover products like measuring scales in the package, separated, or in dilution of the drug, then they may consider you intended to sell the controlled substance.
Drug Packaging
The method in which the controlled substance was packed may describe whether you intended to sell them. For instance, if the drug was packed in bundles, baggies, balloons, or any other way associated with the sale, then the prosecutor may decide you intended to sell them. Again, if the prosecutor discovers a packaging material, it may prove you wanted to sell the controlled substance.
Legal defenses for violating California penal code 11351
Under California HSC 11351, possession of a controlled substance for sale may result in grave consequences and punishments. When charged with the crime, you have to hire an attorney with many years of experience in California drug crimes. The lawyers know the best approaches to defend you against the charges. Below are fruitful legal defenses an attorney may use to defend you:
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Illegal Seizure
California law prohibits law enforcement officers from conducting an illegal search. Police officers violate the law by:
- Searching you without issuing a warrant
- They can also search beyond order, for example, when officers search your bedroom when the permit stipulates searching your living room
If the police search your property illegally, your defense lawyer considers filing a petition. The petition will suppress all the evidence collected. Again the court will do away with your charges.
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You Did Not Intend to Sell
HSC 11351 acquaint you from prosecution once found with a controlled substance without an intent to sell. However, the defense may only work if you have proof that you possessed the substances and you were in the process of discarding them. Again the defense may work if the possession of a controlled substance was for personal use. A skilled lawyer may argue you possess a controlled substance, temporarily intending to dispose of it.
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You Had a Valid Prescription
A certified physician, dentist, podiatrist, or veterinarian may have prescribed a controlled substance for you. You have a strong defense since the prosecution team will have to prove your prescription is not genuine. Your lawyer may argue you had a valid prescription when you suffered from an illness managed by a controlled substance. The defense will work if you possess an exact amount to your medical needs. Again, the defense works when you didn't intend to sell the controlled substance.
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Lack of Knowledge
To face conviction for possession of a controlled substance in California, you ought to have full knowledge you possess a controlled substance. If you lack knowledge of the drug and its criminal nature, you should be cleared of illegal possession.
You may argue you were unaware of the nature of the controlled substance. For example, when you believe that the heroine you were arrested with is salt. However, it may work as a defense only if you don't have existing records on possessing drugs. If your judge is sure you don't have an existing drug experience, it's much easier to use lack of awareness as your defense.
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You Possessed The Controlled Substance Temporary
California, Health Safety Code would allow temporary possession or control of substance as a defense, only if the intention of possession was legitimate. However, you should prove before the court that:
- You Possessed the drugs for a momentary period
- Your intention of the possession of a controlled substance was to dispose or destroy to prevent other people from possessing it
- You didn't prevent the police from getting the controlled substance by getting rid of it when you saw the officers
A skilled attorney will help you prove the above by providing evidence. The evidence will work if the conditions given above were met.
Find a Long Beach Criminal Attorney Near Me
Possessing controlled substances in California is a serious crime that carries severe penalties like heavy fines and long jail terms. That’s the main reason why you want to seek legal help from competent criminal lawyers. At Long Beach Criminal Attorney, we evaluate your case and build a strong defense. The lawyers are well versed with drug crimes. We provide services to facing charges in Long Beach, CA. Call us today at 562-308-7807 and speak with one of our drug crime lawyers.