When arrested for possession of a controlled substance in Los Angeles, your life is turned upside down. California Health and Safety Code (HSC) 11350 makes the possession of even a small quantity of an illicit substance or prescription medication without a prescription a serious crime. This legal quagmire can affect your liberty, your professional license, and your ability to stay in the US if you are not a citizen.
California law is confusing, especially after Proposition 47. You need a proactive approach to these serious accusations. CCLG: Los Angeles Criminal Attorney offers the expertise needed to counter the prosecution and defend your rights. Our skilled attorneys prioritize dismissals, reductions, and treatment options. Call us now to book an appointment and begin crafting a strong defense.
The Legal Definition of Possession Under Health and Safety Code 11350
Under California Health and Safety Code 11350, it is unlawful to possess certain controlled substances without a valid, written prescription from a medical practitioner. This law is the main vehicle for the prosecution of “simple possession”—that is, drugs that are possessed for personal consumption but not for sale or supply. The scope of this statute is broad, covering many illicit substances and prescription drugs. Although recent years have seen a move toward the rehabilitation of offenders, the technical definition remains narrow. You commit an offense under this law merely by having control over the substance, even if you are not using it or planning to share it.
The state uses the wording of the Health and Safety Code to define substances and prove that your possession is illegal. The law does not make a distinction between someone in possession of a drug for a short time and someone in possession of a drug for an extended period. Any act of control over the contraband is sufficient for an arrest. Given this is a strict liability area, in many procedural senses, the focus is on the physical and mental aspects of the act. You don’t have to intend to get high. Instead, you must have some connection to the substance found by the police.
What the District Attorney Must Prove
The district attorney must prove beyond a reasonable doubt each element of the HS 11350 charge. Unless each element is proven beyond a reasonable doubt, the court cannot find you guilty. This serves to protect your constitutional rights. Your lawyer will be looking for evidence gaps in relation to your physical control over the drugs and your state of mind at the time the incident occurred. To understand these elements, a thorough examination of the facts surrounding your arrest and the manner in which the police obtained evidence is necessary.
- Possession of a Prohibited Substance
The first element the district attorney needs to prove is that you were in actual or constructive possession of a substance listed in the California schedules. This can be a Schedule I substance, which the government considers to have a high potential for abuse and no currently accepted medical use, like heroin or certain hallucinogens. It also includes Schedule II through V narcotics, which range from cocaine and raw opium to less potent prescription drugs such as codeine. To successfully prosecute, the prosecution must prove that the substance was, in fact, the claimed drug. This may include laboratory analysis and the establishment of a chain of custody. If the substance is not listed in Health and Safety Code 11350, the charges may not hold up. Your lawyer will review the reports of chemical analysis to ensure the prosecution has carried the burden of proof as to the nature of the substance.
- Knowledge of the Drug’s Presence and Nature
To convict you, the prosecutor must establish that you knew of the presence of the drug and that you knew that the substance was a controlled drug. This element is the most difficult to prove in a drug case. For example, if a friend left a baggie of cocaine in your car, you don’t have the necessary “scienter” or criminal intent to be convicted. Likewise, if you thought the substance was an innocent substance like sugar or flour, the prosecution may have difficulty proving you knew you had a narcotic. But you don’t need to know the drug’s name or its level of purity. It’s enough for the prosecutor to prove you knew the substance was a controlled or prohibited drug. Knowledge is usually proven by circumstantial evidence, such as your actions at the time of arrest, statements made to police, or the place where the drugs were found.
- Usable Quantity vs. Mere Residue
The last element is the drug’s quantity. California law defines the amount of the drug as a “usable quantity,” which means that there must be sufficient drug to use as a narcotic. This is to avoid prosecuting people for the smallest amounts or for useless scraps of debris that cannot achieve the desired effect. The court will determine whether there is a “usable quantity” based on the People v. Leal precedent, rather than whether there is a “usable quantity” to intoxicate. If the police found only a glass pipe with burnt residue or a minuscule amount of powder that is uninhabitable, your lawyer will argue for charges to be dropped. Weighing is important in these cases, and any discrepancy between the weight measured by the lab and that recorded by the police officer can be used to your advantage.
Identifying the Three Forms of Legal Possession
Legal possession is not as straightforward as it may seem. You don’t have to be touching something to possess it in California. There are three theories of possession: actual, constructive, and joint. Knowing which theory is being applied is crucial to a defense. Police officers often arrest everyone in a car or room where drugs are discovered, using these broad theories to obtain multiple arrests. Disputing the connection between you and the drugs is one way to avoid conviction.
Actual Possession
Actual possession is when you have physical control of the substance. This is the easiest type of possession to prove and usually occurs when the drugs are on your person, such as in your hand, in your pocket, or concealed in your clothes. When a police officer searches you and finds drugs, the prosecution will claim you had actual control and access. This type of possession is hard to refute on grounds of physical control, but it is open to challenge on grounds of knowledge and the lawfulness of the search. If the police officer did not have probable cause to frisk you, then the evidence in your actual possession may be excluded.
Constructive Possession
Constructive possession is a more theoretical concept when the drugs are not on your person but are in your immediate control. So, if drugs are found in the glove box of your car or in a drawer in your bedroom, the prosecution will argue that you had constructive possession. They will need to establish that you had a right to possess the drugs, even though you were not in physical contact with them at the time of the search. This may include examining who is the registered owner of the car, whose name is on the apartment lease, or who has a key to a particular locker. In these types of cases, the defense will often focus on proving that others had the same access to the area and that you didn’t know the drugs were hidden there.
Joint Possession
Joint possession occurs when more than one person has possession of a controlled substance. You can be found guilty of joint possession even if you didn’t buy the drugs or even have them in your possession. For example, a man and a woman may live together in an apartment, and drugs may be stored in the living room. Police might arrest both based on their knowledge and control of the drugs. To defend against a joint possession charge, your lawyer will need to prove that you did not have control over the drug and that your presence is not enough to prove guilt.
Controlled Substances Listed in HS 11350
Health and Safety Code 11350 is limited to drugs listed in the California Uniform Controlled Substances Act. This list is broken down into “schedules” according to the drug’s medical value and addictive potential. It’s important to note that these charges are different from other drug offenses, such as possession of methamphetamine or marijuana, which are governed by other sections of the code. The sentencing and strategies to defend against these charges depend on the chemical makeup of the drug you are charged with.
Illegal Narcotics
These are commonly known “street drugs” that are either not used for medical purposes or are heavily regulated. These include heroin, cocaine, cocaine base, and hallucinogens such as LSD, peyote, and mescaline. Since these drugs are illegal to possess regardless of a prescription, the prosecution does not have to prove the lack of a prescription. Simply having these chemicals on your person is sufficient to warrant an arrest. These cases will often depend on the legality of the police interaction and whether the police had probable cause to search or seize.
Prescription Drugs Without a Prescription
Health and Safety Code 11350 also covers numerous legitimate prescription medications when they are not possessed with a valid prescription. These include narcotics such as OxyContin, Vicodin, hydrocodone, and codeine. It also applies to anti-anxiety drugs like Xanax and Valium. If hydrocodone is stashed with these pills in an unlabeled bottle or plastic bag, the police will presume you got them illegally. To avoid conviction, you will need to produce a written prescription from a licensed doctor valid at the time of the arrest. Even if you have a prescription for someone else (such as a family member), you can still be charged under this law.
Penalties for a Conviction
The penalties for an HS 11350 conviction have changed dramatically in the past 10 years. In the past, possession of drugs was frequently charged as a felony, resulting in prison terms and loss of civil rights. Simple possession charges are now usually misdemeanors in California. But there are still circumstances that can result in a felony conviction and more severe penalties. Whether you have a criminal record and how you were arrested are the factors that determine which sentencing scheme will apply.
The Impact of Proposition 47
Proposition 47 was approved by California voters in 2014 and has significantly impacted the prosecution of drug crimes. It converted most simple drug possession charges (HS 11350) from felonies to misdemeanors. This means that the maximum sentence for a typical possession charge is now 12 months in county jail and a fine of up to $1,000.
This change was designed to free the state to devote more resources to violent crime and to offer non-violent drug offenders an opportunity for treatment rather than lengthy prison sentences. This means that, for most people arrested in Los Angeles, you will not be sent to state prison, but a misdemeanor conviction is still serious and will appear on every background check a prospective employer may run.
Felony Exceptions
Proposition 47 downgraded most possession crimes but did not end felony charges for all offenders. You will be charged with a felony under HS 11350 if you have a previous conviction for a “super strike” crime. Such crimes include murder, attempted murder, solicitation to commit murder, gross vehicular manslaughter while intoxicated, and certain violent sex crimes. Also, if you are a registered sex offender under California law, you cannot be charged with a misdemeanor under Proposition 47. If you are a member of these groups, you can face a sentence of 16 months, two years, or three years in state prison for simple possession.
Collateral Consequences
A drug conviction can have a far-reaching effect. These are known as collateral consequences. For immigrants, an HS 11350 conviction is a “deportable offense” and a “ground of inadmissibility” under the Immigration and Nationality Act. This means that even a misdemeanor will result in the loss of your green card or permanent ban from entering the United States. If you are a doctor, nurse, or attorney, a drug conviction will require you to report the conviction to the state medical, nursing, or bar board, resulting in the suspension or revocation of your license to practice. And a felony conviction will lead to a permanent firearm prohibition in California.
Defenses to HS 11350 Charges
Being charged is not the same as being convicted. There are many strategic ways an attorney can attack the prosecution’s case. These include constitutional, factual, and Health and Safety Code requirements. An investigation into the facts surrounding your arrest will allow your attorney to determine the best approach to a dismissal or reduction of charges. No two cases are alike, and a “one size fits all” approach is never a good idea when your liberty is on the line.
Unlawful Search and Seizure (Fourth Amendment Violations)
You have a right against illegal search and seizure of your property under the United States Constitution. In most drug cases, evidence is found during a car stop, a street frisk, or a home search. If the police lacked a warrant, probable cause, or another valid reason to forego one, the search could be illegal. Your lawyer can move to suppress the evidence in a Motion to Suppress Evidence (Penal Code 1538.5). If the judge rules that the search was unconstitutional, the drugs can’t be used against you. Without the drugs, the prosecution will usually dismiss the case. This is usually the most effective defense in a criminal case.
The Valid Prescription Defense
If you are arrested for possession of a controlled substance that is a prescription drug, then you can use a valid prescription as a defense. It is legal to possess these drugs if they were prescribed for you by a medical professional, such as a doctor, dentist, podiatrist, or veterinarian. This is true even if you don’t have the medication in its original packaging, although that is often how the drugs are discovered. Your lawyer can produce your medical records and the testimony of your doctor to establish your lawful possession. It is important that the prescription was valid at the time the police found the drugs.
Lack of Knowledge or Planted Evidence
As previously mentioned, the prosecution must show that you were aware of the drugs and that you knew the drugs were illegal. If you did not know, you did not commit a crime. This is frequently the case in car-sharing and “borrowed” clothes situations where the prior user left the drugs behind. In rare cases, people are victims of “stings” by malicious individuals or even corrupt police. It’s difficult to prove that evidence was planted, but it’s possible to show a lack of knowledge through circumstantial evidence and eyewitness testimony to raise reasonable doubt with the jury.
Momentary Possession for Disposal
You may be able to successfully defend yourself if you only possessed the drugs for a “momentary” or “transitory” period. This doctrine applies if you took possession of the controlled substance only for the purpose of getting rid of it, abandoning it, or destroying it. For example, if you found a bag of drugs in your son or daughter’s bedroom and took them to the bathroom to dispose of them just before the police arrived, you may not have committed the crime of possession. But this is only the case if you didn’t intend to stop the police from taking the drugs and if you didn’t ingest the drugs. You need to prove that you intended to eliminate the risk, not possess the drugs.
Alternatives to Jail
California has several “diversion” programs for simple possession. These alternatives take into account that drug addiction is frequently a medical problem. If you qualify, these programs can help you avoid a conviction by completing a court-approved treatment program. To successfully take advantage of these opportunities, it’s important to have a sound legal strategy and to know what makes you eligible for the various programs.
PC 1000 (Pretrial Diversion)
Penal Code 1000 is a pretrial diversion program for many first-time drug offenders. The court will put your case on hold while you attend a drug education or treatment program. If you complete the program (typically in six to 12 months), the court will dismiss the case. Perhaps the best part of PC 1000 is that you can honestly answer “no” to most job applications if you have never been convicted of a crime and the charges are dismissed. This program is typically only available to people without a previous drug conviction and who are nonviolent.
Proposition 36 (Post-Conviction Diversion)
The Substance Abuse and Crime Prevention Act of 2000, also referred to as Proposition 36, offers an alternative to those who might not be eligible for PC 1000. In contrast to pretrial diversion, Prop 36 requires a plea in most cases, but the court must sentence qualified defendants to probation and drug treatment rather than jail. You can ask the court to dismiss the charges and seal your arrest record in case you complete the program and adhere to all the conditions of your probation. The program is an important tool for people with long-term addiction who require more intensive services than a mere education course can offer.
Find a Criminal Defense Lawyer Near Me
A Southern California drug possession case has the possibility of life-changing effects that go well beyond the courtroom. The most decisive action you can take, which will help you save your reputation as a professional, immigration status, and personal freedom, is to act quickly. To navigate the complexities of Health and Safety Code 11350, it is necessary to have an advocate capable of contesting police processes and negotiating an alternative based on treatment, such as drug diversion.
At CCLG: Los Angeles Criminal Attorney, we have extensive experience across every area of criminal defense and are willing to defend clients in the Los Angeles region. We provide free consultations to help you know what options you have and what strong points your possible defense has. Do not leave your future to chance or accept an unnecessary conviction. Call us at 323-922-3418 and speak to a criminal lawyer to help you with your case.
