There are a variety of different drug charges, from possession to sales. You can also get a DUI if you are under the influences of a controlled substance (drugs) while driving. Yes! Even if its prescription medication. You can read more about Drug related DUIs here.
Possession of Drugs
Drug charges included being in Possession of a Controlled Substance. In California, it’s against the law to have illegal drugs, under Health and Safey Code 11350. If it’s your first time, it’s a misdemeanor. But if you’ve been in trouble for this before, it can become a felony.
There are a lot of different kinds of drugs that you are not allowed to possess. They include opiates, opium derivatives, depressants, cocaine base, mescaline, peyote, hallucinogenic substances, as well as any drugs classified in Schedule III, IV, or V.
To be found guilty of a breaking this law, a judge or jury must be convinced that the prosecutor has proved each of the following, beyond a reasonable doubt.
- You possessed a controlled substance;
- You knew of the substance’s nature or character as a controlled substance;
- That you knew of its presence;
- The controlled substance was in a usable amount; AND
- You did not have a valid prescription for that substance from a physician, dentist, or veterinarian licensed to practice in California.
You don’t need to physically hold or touch the drugs to considered in possession of them. As long as you control over it, or the right to control it, is enough to prove possession. For example, if police find drugs in your gym bag in the car, even though you are not holding the drugs directly, you are still considered to be in possession because you have control and the right to control the drugs in your gym bag. Additionally, multiple people may be in possession of the same drugs at the same time.
How can the prosecution prove that you were aware of the drug’s presence or character? Of course, this will depend on the circumstances of your case. For example, if you made a statement to law enforcement where you admitted to having the drug, that statement could be used as evidence to show that you were aware the drug was there and that you knew of it was a controlled substance.
Useable Amount of Drugs
To prove the amount was useable, the prosecutor could have an expert testify that the amount found was useable. A useable amount is more than traces of the drug. An amount that can be used by someone as a drug is considered a useable amount. However, the amount can be useable even if it’s not enough to affect the user.
If you have a proper prescription from a doctor for the drug, you are not guilty of a violation of Health and Safety Code 11350. The prosecution must prove beyond a reasonable doubt that you did not have a valid prescription at the time you had the drug.
A misdemeanor violation of Health and Safety Code 11350 lead to up to a year in county jail. But don’t worry, you should speak to an experienced criminal defense attorney to talk about your options. If this is your first drug offense in 5 years, you may be eligible for diversion under California Penal Code 1000. You can read more about diversion here.
On the other hand, a felony violation because of more recent drug priors, carries two years, three years, or four years in state prison.
Possession of Drugs for Sale
Drug charges also include being in Possession of a Drug for Sales. In California, it is a felony to possess drugs for sale, under Health and Safety Code 11351.
In order for a jury or court to find you guilty, they have to be convinced the prosecutor proved each of the following, beyond a reasonable doubt.
- You possessed a controlled substance;
- You knew of its presence;
- You knew of the substances nature or character as a controlled substance;
- When you were in possession of the controlled substance, you have intent to sell it OR have someone else sell it.
The possession and knowledge elements of this crime are the same as the elements for simple possession, described above. However, the prosecution would have to prove an additional element for this drug charge, that you had the intent to sell.
Intent to Sell
To prove that you intended to sell the drugs, or to have someone else sell them, the prosecution can present different pieces of evidence. This could include things like scales, pay owe sheets, drugs packed into small bags, a lot of cash, and a large amount of the drug. They might also use what you’ve said or texted about selling as evidence.
If you are convicted of Possession for Sales, you can be sentence to two, three, or four years in prison. However, depending on the circumstances of your case, you may be eligible for Felony Probation. If you are facing drug charges, you should speak to an experienced criminal defense attorney about your case to see what your options are.