Possessing a controlled substance is a criminal offense at both the federal and state levels. At the state level, California prosecutors pursue the crime under HSC 11350. The severity of the offense depends on factors including the type and amount of the substance and the defendant’s criminal history.

If you or someone you know is facing charges related to possessing a controlled substance, consult with a qualified and experienced criminal defense attorney. At Monterey Criminal Attorney, we offer guidance tailored to the specific case. Our approach ensures rights protection, and we work towards the best possible outcome in legal proceedings.

Possession of Controlled Substances Under the Health and Safety Code 11350

First, we must explain what a controlled substance is.

The term "controlled substance" covers a broad spectrum of drugs. It includes both legal and illegal categories. Government authorities regulate these substances due to their potential abuse or misuse to safeguard public health and safety. The government regulates the drug’s possession, use, or manufacture.

Included in controlled substances are prescription medications, over-the-counter drugs, and illegal substances. Prescription drugs, which are entirely legal when prescribed by a licensed medical professional, cross into illegality when possessed without a valid prescription. Meanwhile, certain recreational drugs and other illegal substances are inherently prohibited.

Health and Safety Code Section 11350(a) lays out the rules regarding the possession of controlled substances. In simple terms, it makes it illegal for anyone to have certain specified drugs without a valid prescription. These substances are classified under different sections of the law, like Schedule III, IV, or V narcotic drugs and other specific substances outlined in the Health and Safety Code.

The critical factor determining possession's legality is whether there is a valid prescription. You are clear if you have a written prescription from a licensed professional, like a doctor, podiatrist, dentist, or veterinarian. Without that prescription, having these substances becomes a criminal offense.

A jury will only convict you of HSC 11350 if the prosecution proves the following as true:

  • You had a controlled substance in your possession, meaning it was under your control.
  • You did not have a valid prescription for the controlled substance — Having a legitimate prescription could serve as a defense.
  • You were aware of the presence of the controlled substance — This indicates your knowledge that it was in your possession.
  • You knew the nature of the substance as a controlled substance — You must have known the substance was regulated and illegal without a valid prescription.
  • The controlled substance was usable — This indicates that the quantity was sufficient for consumption or use.

Let us look at the critical elements in detail.

  1. Possession

Possession of a controlled substance is simply having physical control or ownership of a regulated drug. These substances are classified based on factors such as:

  • The medical use.
  • Potential for abuse, and
  • The likelihood of causing dependence.

Possession can be:

  • Actual — The substance is on your person or
  • Constructive — It is in a location under your control.

You do not necessarily have to touch something to possess it physically. Additionally, just agreeing to buy a controlled substance does not automatically mean you have control over it. Possession can involve knowing about the substance's presence or having constructive control, even without physical contact.

Further, it is crucial to understand that multiple individuals can be considered to be in possession of something simultaneously. The concept of joint or shared possession recognizes that more than one person could have a connection to or control over a controlled substance simultaneously.

  1. Knowledge

You are only guilty of an HS 11350 violation if you know two issues:

  • The controlled substance is there and
  • The controlled substance is classified as such under the law.

Simply put, the prosecution must prove that the substance existed and was regulated as a controlled substance.

The prosecutor does not always have to prove you knew the specific controlled substance you had, especially in certain situations. Instead, they just need to show that you knew the substance was some kind of drug. The focus here is not on identifying the exact drug but on establishing that you were aware the substance in question fell into the category of controlled drugs.

  1. Analogs of Controlled Substances

The law addresses controlled substances and analogs of controlled substances.

As mentioned before, controlled substances are categorized in schedules per the Controlled Substances Act. With Schedule III to V drugs, you should have written permission. Here is a look at the classification of the drugs that will result in charges for HSC 11350:

  • Schedule I — Drugs that fall under this category are deemed to have no currently accepted medical use and a high potential for abuse. This category includes substances considered the most dangerous due to their significant risk of abuse. Examples include lysergic acid, heroin, diethylamide (LSD), marijuana (cannabis), ecstasy, peyote, and methaqualone.
  • Schedule II — This category focuses on substances, drugs, or chemicals characterized by a high potential for abuse, with usage carrying the potential for severe physical or psychological dependence. These drugs are classified as dangerous. Examples include Vicodin, meperidine (Demerol), methamphetamine, cocaine, methadone, Adderall, hydromorphone (Dilaudid), oxycodone (OxyContin), fentanyl, Dexedrine, and Ritalin.
  • Schedule III — Substances, drugs, or chemicals under this category have a moderate to low potential for both psychological and physical dependence. They have a lower abuse potential than Schedule I and II drugs but a higher one than Schedule IV. Examples include anabolic steroids, ketamine, testosterone, and Tylenol with codeine.
  • Schedule IV — This schedule categorizes drugs, chemicals, or substances with a low potential for abuse and minimal risk of dependence. Notable examples include Soma, Xanax, Darvon, Valium, Darvocet, Ambien, Ativan, Talwin, and Tramadol.
  • Schedule V — Drugs, chemicals, or substances under this schedule exhibit an even lower potential for abuse compared to Schedule IV. These preparations contain limited quantities of specific narcotics and are commonly used for antitussive, antidiarrheal, and analgesic purposes. Examples include Lyrica, Lomotil, Motofen, and Parepectolin.

Note: Despite cannabis being classified as a Schedule I drug, possession of marijuana is not in violation of HSC 11305. Prosecutors will instead pursue a conviction under HSC 11357.

An analog of a controlled substance is a chemical compound closely resembling a controlled substance but with slight variations in its molecular structure. It also induces effects on the central nervous system that are substantially similar to or more potent than those of the controlled substance. These analogs are typically designed to imitate the effects of controlled substances while aiming to sidestep legal regulations.

Per HSC 11401, analogs of controlled substances do not include the following:

  • For a specific individual, any substance for which there is an exemption for investigational use under the federal Food, Drug, and Cosmetic Act to the extent that the activities involving that substance comply with the granted exemption.
  • Any substance before the effectiveness of an exemption specified under the federal Food, Drug, and Cosmetic Act if the substance is not intended for human consumption.

  1. Usable Quantity

A "usable amount" of a controlled substance denotes a quantity suitable for consumption through ingestion, inhalation, injection, or other methods. Simply put, it indicates an amount capable of producing an effect or fulfilling its intended purpose. Notably, a usable amount is not required to be sufficient, either in quantity or strength, to induce intoxication.

Fighting Possession of a Controlled Substance Charges

Depending on the specifics of your case, your attorney can help you formulate a successful defense strategy. A proficient and experienced attorney will examine the details, evaluate the evidence, and devise legal approaches to construct a robust defense. Whether by contesting the evidence's validity, scrutinizing procedural legality, or offering alternative perspectives, your attorney plays a pivotal role in championing your rights and striving for a positive resolution.

Here is a look at some of the strategies he/she could use:

  1. You Did Not Possess the Substance

When using this defense, you assert that you did not have actual or constructive possession of the controlled substance in question. This defense comes into play when the substance is discovered in a shared space and no clear link establishes you as the possessor.

For this defense to be effective, the prosecution must demonstrate that you had control, knowledge, and intent regarding the controlled substance. If the substance was found in an area accessible to multiple individuals and there is no direct evidence tying it to you, the lack of possession defense becomes plausible.

Your attorney will present evidence supporting the claim that you were not aware of the controlled substance's presence. Alternatively, they can table evidence showing others had equal access to the location. Witness testimonies, surveillance footage, or forensic analysis bolster the lack of possession argument.

  1. Authorities Obtained the Drugs Through an Unlawful Search and Seizure

You can assert that the drugs were obtained through an unlawful search and seizure. This illegality violates your constitutional rights. This defense strategy centers on challenging the legality of the search that led to the discovery of controlled substances. It is rooted in constitutional protections, particularly the Fourth Amendment. This constitutional provision safeguards individuals from arbitrary invasions of privacy by law enforcement.

The Fourth Amendment mandates that police officers should have probable cause to conduct searches and seizures. A judge must issue the warrant used to search. The warrant should specify the place to be searched and the items to be seized. Violations of the Fourth Amendment are grounds for excluding evidence in legal proceedings.

However, you must demonstrate that law enforcement searched your premises without a proper warrant, probable cause, or adherence to established legal procedures. Any evidence obtained during the search will be deemed inadmissible in court if the search is deemed unconstitutional.

This defense requires a detailed examination of the search's circumstances, focusing on violations of constitutional rights. Evidence of an illegal search and seizure can lead to the suppression of the drugs discovered in the search. This significantly weakens the prosecution's case.

Successfully establishing a violation of your rights can lead to excluding critical evidence. This could result in a favorable outcome for the defense. The strength of this defense lies in the meticulous scrutiny of law enforcement actions concerning constitutional protections.

  1. You Had a Valid Prescription

When asserting that you had a valid prescription as a defense, you insist that you had a legitimate and lawful prescription for the controlled substance. This defense applies when dealing with prescription medications.

You must provide a valid prescription. This prescription must be issued by a licensed medical professional authorized to prescribe the controlled substance. The prescription indicates that your possession of the substance was authorized and medically necessary.

Valid prescriptions, including details such as:

  • The prescribing doctor's information.
  • Your name.
  • The prescribed dosage and
  • The intended purpose of the prescription.

The authenticity of the prescription must be verifiable for the defense to carry weight.

Presenting a valid prescription will convince the judge to nullify charges of unlawful possession. The prescription shows that your actions align with medical guidance and regulations.

  1. You are a Victim of Entrapment

Law enforcement often conducts sting operations in drug offense cases. If you find yourself in a situation where you believe you were coerced into committing a crime you would not have otherwise committed, you have grounds to assert entrapment as a defense.

The entrapment defense argues that law enforcement induced or encouraged you to commit a crime you would not have otherwise committed. It contends that your criminal actions resulted from the undue influence or pressure created by law enforcement, not from a preexisting intent on your part to engage in criminal behavior.

Two key elements are needed when using this defense:

  • Government inducement — You must show that law enforcement significantly encouraged or persuaded you to commit the crime. This could involve tactics like coercion, repeated requests, or appeals to sympathy.
  • Lack of predisposition — You must demonstrate no inclination or intent to commit the crime before the government's involvement. The entrapment defense will be less effective if you are inclined to commit the offense.

The success of an entrapment defense depends on the case's specific circumstances. It also relies on the ability to demonstrate both government inducement and a lack of predisposition convincingly. If the defense is accepted, it can lead to the dismissal of charges or a favorable outcome in court.

  1. Unknown Possession

You can argue that you had no knowledge that you possessed the controlled substance. Your attorney’s argument centers on the assertion that you did not know that the substance in question was a controlled substance or even present. Commonly known as lack of knowledge or unknowing possession, this defense suggests that you were unaware of the nature or existence of the controlled substance.

This defense strategy is effective if your attorney establishes that, during the alleged possession, you were uninformed about the substance being classified as a controlled substance. This defense also applies if you lack awareness of the substance's presence.

Successfully presenting this defense involves meticulously examining the possession's circumstances. It requires highlighting any factors indicating a lack of knowledge or awareness. The burden is placed on the prosecution to prove that you knowingly possessed a controlled substance.

This defense strategy aims to challenge the crucial element of knowledge integral to many controlled substance offenses. If accepted by the court, it can yield favorable outcomes, possibly leading to reduced charges or acquittal.

Penalties You Risk Facing Upon Conviction

Simple drug possession is a misdemeanor violation. Most first-time offenders commit misdemeanor violations. The offense is punishable by the following penalties:

  • A jail sentence of up to one year.
  • A fine of up to $1,000.
  • Summary probation for up to 3 years instead of jail time.

Should the judge require you to be on probation, he/she will require you to serve a community service sentence and pay the fine. Should you fail to pay, the courts will review your case and give further guidelines. Your inability to pay should not deny you access to probation. In most cases, community service is sufficient.

Second and subsequent offenders end up paying $2,000 in fines.

Prosecutors will pursue felony charges if you have a prior conviction for the following:

  • A serious felony, for example, rape.
  • A violent crime, for example, gross vehicular manslaughter while intoxicated.

A felony conviction could result in imprisonment for up to 3 years.

In certain instances of unlawful possession, you could be eligible for enrollment in a drug diversion (treatment) program or drug court.

Drug diversion programs and drug courts offer an alternative approach to non-violent drug offenses, focusing on treatment and rehabilitation rather than conventional incarceration. Eligibility for these programs is contingent on factors such as:

  • The nature of the crime.
  • Your criminal history, and
  • The local jurisdictional policies.

Note: These alternatives aim to tackle substance abuse and minimize repeat offenses. Additionally, these alternatives offer individuals a chance for rehabilitation rather than serving time in jail or prison.

Immigration Consequences

The possession of drugs can have significant implications for non-citizens. Drug-related offenses could result in:

  • Deportation.
  • Denial of admission, or
  • Ineligibility for specific immigration benefits.

The severity of these consequences is influenced by factors such as:

  • The nature of the drug offense.
  • The type and quantity of the controlled substance, and
  • Whether the offense is classified as a misdemeanor or felony.

Additionally, individuals identified as drug addicts or abusers could face deportation and inadmissibility. This is the case even in the absence of a formal conviction. Furthermore, per 8 U.S.C. § 1227(a)(2)(B)(ii), individuals whom the government reasonably suspects to be involved in drug trafficking or assisting in these activities could be deemed inadmissible without the need for a formal conviction.

Expungement of My Conviction

Under PC 1203.4, you can expunge certain convictions. However, not all convictions are eligible for expungement, and the specific criteria can vary.

PC 1203.4 allows individuals who have completed probation for specific offenses to petition the court for an expungement. You are only eligible if you:

  • Complete probation or secure an early release.
  • Fulfill all terms and conditions of probation.
  • Have no pending criminal charges or convictions.

Ensure that the offense is not excluded from expungement (certain serious felonies are ineligible).

Meeting these criteria will qualify you to petition the court for an expungement.

Note: An expungement does not entirely erase the conviction but changes the plea to "not guilty" and dismisses the case.

Opting for expungement comes with several clear advantages:

  • Employment boost — Expungement allows you to truthfully answer "no" when questioned about prior convictions on job applications, potentially increasing your employability by removing certain obstacles associated with a criminal record.
  • Professional license assistance — Expungement could enhance your eligibility in professions requiring licenses. Some licensing boards factor in criminal records, and having a conviction expunged can be beneficial in obtaining or retaining a professional license.
  • Improved housing prospects — Landlords often conduct background checks, and expungement can mitigate the impact of a past conviction on your ability to secure housing.
  • Restoration of civil rights — While not erasing the conviction, expungement signifies the court's recognition that you have fulfilled your obligations and are on a rehabilitative path, potentially contributing to the restoration of certain civil rights.
  • Peace of mind — Expunging a conviction provides emotional relief, offering closure and a sense of a fresh start by removing the criminal record from public access.

Find a Criminal Defense Attorney Near Me

The Monterey Criminal Attorney team has a profound grasp of the law, legal procedures, and potential defenses. Our experience allows us to thoroughly evaluate the specifics of your case, strategically identify legal approaches, and construct a robust defense.

Not all cases proceed to trial. We could engage the prosecution to secure favorable outcomes through reduced charges or alternative sentencing. We work towards achieving the optimal result for our clients. If your case advances to trial, we will present your case, skillfully cross-examine witnesses, and present compelling legal arguments to the judge or jury.

Should you or a loved one face charges related to the possession of controlled substances, contact us at 831-574-1791 for further assistance.