Facing felony charges for possessing drugs with the intent to distribute in Los Angeles can have serious consequences and put your future at risk. A violation of California Health and Safety Code Section 11351 can result in a prison sentence and substantial fines. A conviction may also affect your eligibility for certain drug diversion or treatment programs. These penalties are harsh, so it is crucial to respond promptly and build a solid defense. A seasoned lawyer can review the evidence and determine whether the police followed proper investigative procedures.
If your constitutional rights were violated, your lawyer can challenge the prosecution’s case. A careful examination of the facts surrounding your arrest may show that there are weaknesses that can be used to support reduced charges or a dismissal. At CCLG: Los Angeles Criminal Attorney, our criminal defense attorneys have the experience to protect your rights, build a strategic defense tailored to your case, and fight for the best possible outcome.
Understanding California Health and Safety Code Section 11351
Possession or purchase of certain controlled substances with the specific intent to distribute is a felony under California Health and Safety Code Section 11351. This is a major component of California’s tough drug distribution network laws.
This law is not a simple possession law to deal with personal substance abuse, but rather it is directed at people suspected of being involved in the supply side of the drug trade. The law is a broad one and covers a wide variety of chemical substances, illegal street drugs, and prescription drugs.
This code section categorizes controlled substances into schedules according to their potential for abuse and accepted medical use. Illicit street drugs subject to Health and Safety Code Section 11351 HS include:
- Heroin
- Cocaine and cocaine base
- Lysergic acid diethylamide (LSD)
- Peyote
- Psilocybin mushrooms
- Gamma-hydroxybutyric acid (GHB)
- Ecstasy (MDMA)
This statute applies not only to illegal street drugs but also to prescription medications possessed without a valid prescription. Prosecutors may charge the unlawful possession of certain prescription drugs under the same statute, including:
- Oxycodone (OxyContin)
- Hydrocodone (Vicodin)
- Codeine
- Morphine
If you are charged with violating Health and Safety Code Section 11351 in Los Angeles County, you could face serious criminal penalties and should seek legal advice promptly.
This crime is distinct from drug sales, so you do not need to sell or attempt to sell drugs to face charges. The prosecution may charge you with a felony if it has evidence that you possessed the controlled substance with the intent to sell it. Prosecutors often file this charge in conjunction with conspiracy charges to strengthen their case against you, adding to your legal risks in the case.
An arrest means investigators believe you are not a user but part of the distribution system. The legal route to take is therefore long and complicated, and the prosecutor has a vested interest in securing a felony conviction. To defend against such charges, you should have a clear, technically precise understanding of how the statute works in practice.
Controlled substances are classified into five schedules under the federal Controlled Substances Act. Schedule I substances are considered to have a high potential for abuse and no currently accepted medical use, while Schedule II substances have accepted medical uses but a high potential for abuse. Schedules III, IV, and V generally include substances with progressively lower potential for abuse and dependence.
These classifications help determine the severity of potential federal charges and penalties. State law may use its own classification system, so the specific schedule assigned to a substance can affect the charges filed and the defense strategies available in a particular case.
California law draws clear distinctions between drug offenses and the penalties associated with them. Because the specific charge can significantly impact the potential consequences, obtaining legal representation early in the case is important. An arrest under Section 11351 does not mean you will be convicted, and fighting the exact placement of the drug in the schedule is a fundamental part of an effective defense from the start of your case today.
What the Prosecution Should Prove
California law requires a prosecutor to prove certain elements beyond a reasonable doubt to secure a conviction for possession of a controlled substance for sale. These statutory components distinguish between possession and the serious felony charge of distribution.
Unlawful Possession or Purchase of the Controlled Substance
The prosecution should prove that you possessed or acquired the controlled substance. California law recognizes three types of possession. Actual possession occurs when you have direct physical control over the drugs, such as when they are in your hand, pocket, or backpack.
Constructive possession is when the drugs are not in your hands, but you have control or the right to control where they are kept. This concept applies to situations where the police find drugs in your car, bedroom, closet, or home safe. Joint possession is when you and someone else have possession and control of the drugs, for example, if you share a room with someone else and the drugs are in the same room.
Knowledge of the Drug’s Presence and Nature
The prosecution has the burden to prove that you knew you had the drugs in your possession and that you knew their nature as controlled substances. When someone puts narcotics in your car or bag without your permission or knowledge, the prosecution does not meet this standard entirely. Also, you cannot be convicted if the specific chemical name or exact formula of the drug is not known.
The Presence of a Usable Amount
To secure a conviction, the substance should be present in a usable amount. This means that the amount of the drug should be enough to be used as a narcotic. A felony conviction under Health and Safety Code Section 11351 may be difficult to support when the evidence consists only of microscopic drug residue. This may include situations where the residue is found in empty packaging or where the packaging is empty and contains only a minimal amount of residue.
It does not specify that the drug should be pure or that the amount of drug should be sufficient to cause intoxication. All it takes is for there to be a usable physical amount. A simple possession charge can be based on traces of a drug, but it cannot be used to support allegations of distribution at any level.
You Had the Specific Intent to Sell
The key element of this offense is the specific intent to sell. The prosecutor should prove that you possessed the drugs with the intent to sell them or acquired them for another person to sell. A sale involves exchanging the controlled substance for money, services, or something else of value. The exchange need not occur in person for the prosecution to allege that a sale took place.
The prosecution may try to prove your intent from the circumstances surrounding the alleged offense, including your communications, travel patterns, and physical evidence recovered during the investigation.
The intent to sell should exist when you possess the controlled substance; a later decision to sell or a prior plan, without the required intent at the time of possession, may not satisfy this element. If your defense attorney can raise a reasonable doubt about whether you possessed the drugs with the intent to sell them, the prosecution may be unable to prove the felony charge.
Circumstantial Indicators Used to Prove Intent to Sell
Law enforcement officers do not always witness drug sales directly, so prosecutors often rely on circumstantial evidence to establish intent to sell. Officers may consider factors such as the quantity and packaging of the drugs, the presence of cash, communications, and other circumstances when determining whether the drugs were intended for personal use or sale. In some cases, specialized drug investigators may also testify about these factors and offer opinions regarding the alleged intent to sell.
Bulk Quantity of the Substance
The first physical factor law enforcement may consider is the amount of drugs recovered. A quantity that appears too large for personal use may be used as evidence of an intent to sell. Officers may compare the amount with typical personal-use quantities. For example, possessing several ounces or kilograms of a controlled substance may lead prosecutors to argue that the drugs were intended for distribution rather than personal use.
Your defense attorney may challenge the assumption that the quantity of drugs alone proves an intent to sell. The defense may present evidence that the amount had another explanation, such as personal use or a bulk purchase. Because the prosecution should prove the intent-to-sell element beyond a reasonable doubt, the quantity of the drugs should be considered together with the other circumstances of the case.
Proving that your possession is consistent with your bulk-purchasing habits is an essential tactic to challenge the prosecution’s assumptions and reduce your charges.
Packaging Materials and Equipment
The packaging of the drugs is crucial evidence for the prosecution. When narcotics are found in several small containers, they are likely to be made up for sale one at a time. These packaging containers include:
- Baggies or plastic wrap
- Balloons
- Bindle papers
- Small vials
Also, the presence of specialized equipment, such as digital scales, measuring devices, and cutting agents for diluting pure drugs, indicates a processing operation. Having these items in your possession, along with narcotics, greatly supports the state’s argument that you were not using them for personal consumption within your own home, but rather for the purpose of distributing them.
Financial Ledgers and Cash Denominations
Financial records and cash are a key element of intent. Police look for substantial quantities of money on your person or close to the narcotics. Small denominations of currency, such as ten-, twenty-, or fifty-dollar bills, indicate active commercial exchanges. Prosecutors also look for physical or electronic “ledgers” containing names, phone numbers, and numbers representing debts.
The state uses these documents, called pay-owe sheets, to prove an active business. Several cell phones or encrypted messaging services that support transactional text messages can also be used to support these claims.
Failure to Have Personal Use Paraphernalia
Whether you have drug consumption tools or not can make the difference in your charges. Burnt pipes, syringes, and rolled-up straws are examples of paraphernalia used to ingest drugs, indicating personal use. If a large amount of drugs is discovered and no personal consumption equipment is found, officers will assume that you were not going to use the drugs yourself.
On the other hand, if you are caught in possession of packaging scales and cash but no personal items, it is a common indicator of possession for sale. This distinction is crucial if your defense team is trying to have your charges dropped to simple possession.
Statutory Penalties and Sentence Enhancements
In California, it is a felony to violate Health and Safety Code 11351. A conviction has serious consequences, including long-term collateral consequences, fines, and imprisonment, all of which are increased by aggravating factors such as prior criminal history or the amount of drugs seized.
Standard Penalties and Fines
If convicted of violating Health and Safety Code Section 11351, you could face a sentence of 2, 3, or 4 years. Under California’s realignment law, this sentence is generally served in jail under PC 1170(h), although certain prior convictions or other statutory circumstances may require imprisonment in state prison.
You could be subjected to fines of up to $20,000. Formal probation may be granted, and you may have to serve up to 1 year in jail as part of your probation, and you should follow strict supervision conditions.
Ineligibility for Drug Diversion Programs
A drug diversion is not available for a charge of possession for sale, as it is for simple possession under Health and Safety Code 11350. Proposition 36, PC 1000, and typical drug courts are statutorily limited to personal-use offenses. This means that you cannot settle your case by going into a rehabilitation program in lieu of a dismissal.
To qualify for these programs, your experienced criminal defense attorney will need to negotiate with the district attorney to drop the charge entirely to a lesser included charge of simple possession, which eliminates the intent-to-sell element.
Weight-Based Enhancements for Cocaine and Heroin
Severe weight-based enhancements are available if the case involves a large amount of heroin, cocaine, or cocaine base. These penalties are in addition to your base sentence. The court adds the following prison terms based on the drug’s total weight:
- 3 more years for weights over one kilogram
- 5 more years for weights over 4 kilograms
- 10 more years for weights over 10 kilograms
- 15 more years for weights over 20 kilograms
- An additional 20 years for weights over forty kilograms
- 25 more years for weights over 80 kilograms
These improvements can also lead to further fines of up to eight million dollars.
Challenging the physical testing, accuracy of the scales, and exact chemical composition of the seized substance is an essential part of your defense because these consecutive terms can significantly add to the amount of time you are spending in jail. Your attorney should ensure that the state’s measurements are accurately verified in accordance with official scientific standards.
Professional Licensing and Immigration Consequences
The implications of a Health and Safety Code 11351 conviction are very harsh. Federal law considers drug sales to be aggravated felonies, meaning that non-citizen drug sales convictions result in deportation.
Additionally, you are also at risk of losing your professional licenses for good. State licensing boards perform background checks for doctors, nurses, real estate agents, teachers, and contractors. If you are convicted of a felony drug distribution charge, you may lose your license or never be able to obtain one. Students can lose eligibility for federal financial aid.
Legal Defenses to Health and Safety Code 11351 Violation Accusations
Challenging a possession-for-sale charge requires a carefully thought-out legal approach. Your future will be protected from the effects of a felony conviction by an experienced defense attorney who can make several constitutional and factual arguments to have the charges dismissed or reduced to simple possession.
Unlawful Search and Seizure Violations
The majority of drug arrests occur during traffic stops, home searches, or searches of personal property. Your lawyer may contest the evidence if law enforcement officers violated your Fourth Amendment rights in their investigation. PC 1538.5 allows your defense team to file a motion to suppress evidence. This motion seeks to have the judge dismiss evidence of any drugs, scales, or cash taken during an illegal search.
Typical constitutional errors involve conducting a search without a warrant, detaining without reasonable suspicion, or executing a search warrant with insufficient probable cause. The prosecutor’s case could be weakened if the court grants this suppression motion, as there is no admissible evidence. This procedural defense is one of the strongest defenses you can obtain to have your felony charges dismissed before trial.
Possession Was Strictly for Personal Use
Evidence that the controlled substance was intended for personal use may help challenge the prosecution’s claim that you possessed it for sale. Your defense attorney may argue that the circumstances, including evidence of a substance use disorder, are more consistent with personal possession than an intent to sell. However, the prosecution should prove beyond a reasonable doubt that you possessed the controlled substance with the intent to sell it.
Your attorney can showcase the evidence of personal-use paraphernalia or demonstrate that the amount of drugs is consistent with your personal use. This defense, if successful, will dismiss your charge under Health and Safety Code 11350 or reduce it to a simple possession charge. This reduction can result in drug diversion, which means you do not have to serve any jail time.
No knowledge or no dominion
Possession cannot be proved if the person was not aware of the presence of the controlled substance. This defense is often used if drugs are discovered in shared areas, like a car you borrowed or a house where you live with other people. You do not have legal control if someone else places the drugs on your property without your knowledge and consent.
Your lawyer can prove that you did not exercise control over the drugs and that there is no circumstantial evidence that you were the one who had the drugs. This defense is effective if you have no prior criminal record of drug offenses.
Momentary or Transitory Possession
California’s law provides for a defense of momentary and transitory possession. To be successful with this defense, your lawyer will need to prove that you had the drug for a short time only to destroy, dispose of, or abandon it. You will also have to show that you did not have the intention to hide the substance from the police.
This defense requires proving these elements by a preponderance of the evidence. For example, if you were only transporting drugs for a friend and did not intend to sell them, you may be able to challenge the prosecution’s claim that you possessed the drugs with the intent to sell.
Related Offenses
Possession for sale is frequently an additional charge to or in lieu of other drug crimes in California. These related statutes can make it easier to navigate the legal landscape and the strategies employed in negotiations or trials, providing a clearer sense of what can happen in your case.
Health and Safety Code 11350 – Simple Possession
The possession of controlled substances for personal use is prohibited by Health and Safety Code Section 11350. Under California law, simple possession is a misdemeanor crime, as opposed to Section 11351, which is a felony. Convictions are less severe and carry a penalty of up to 1 year in jail and a fine of up to $1,000. Also, simple possession charges are eligible for drug diversion programs under Proposition 36 or PC 1000. This program may allow you to have your charges dismissed upon successful completion of a court-ordered drug treatment program.
Health and Safety Code 11352 – Transportation or Sale of a Controlled Substance
In California, the transportation, importation, sale, or distribution of controlled substances is regulated by Health and Safety Code 11352. Section 11351 is for possession with the intent to distribute, while Section 11352 is for the actual sale or transfer of the drugs.
This offense is a serious felony offense with stiffer penalties of 3, 4, or 5 years in prison. A possible sentence of 3, 6, or 9 years is given if you cross non-contiguous county lines with narcotics. Transportation costs are not eligible for drug diversion programs, as with possession for sale.
Find a Criminal Defense Lawyer Near Me
California Health and Safety Code Section 11351 felony drug charges can have harsh consequences and penalties. It is, therefore, crucial to take swift action to safeguard your rights and future. An experienced criminal defense attorney can thoroughly review your case and identify any procedural errors. They can also challenge the prosecution’s evidence and negotiate with the prosecutor to reduce or dismiss charges when appropriate.
At CCLG: Los Angeles Criminal Attorney, our criminal defense attorneys provide experienced representation and offer free, confidential consultations to evaluate your case and develop a strategic defense. If you are facing felony drug charges, contact us today at 323-922-3418 to discuss your case and learn about your legal options.
