The state of California has established stringent rules related to controlled substances. One of the laws that fall under these rules is the possession of a controlled substance for sale. Violation of this law is a severe crime and attracts harsh penalties to anyone convicted of the offense. You should hire a criminal lawyer with experience in cases related to controlled substances to increase the chances of winning your case. If you have more questions after reading this article contact the Los Angeles Criminal Lawyer.
Legal Definition of Possessing a Controlled Substance for Sale
Possession of a controlled substance for sale is prohibited under California Health and Safety Code 11351. Possessing or buying particular controlled narcotic drugs or controlled substances for sale can subject you to sentencing under this law.
Controlled substances can be defined as drugs or chemicals whose manufacturing, possession or usage is regulated by the United States Controlled Substances Act. Some of the common substances controlled under this statute are:
- Opiates and their derivatives
- Certain hallucinogenic substances
- Gamma-hydroxybutyric acid(GHB)
The statute also bans you from purchasing or possessing particular prescription drugs intended for sale. Some of these drugs include Vicodin and codeine.
When a prosecutor wants to convict you with possessing a controlled substance for sale, he or she must ascertain the following factors.
- You possessed or bought the drug
- You knew about of the possession
- You were informed that the nature of the drugs is a controlled substance
- The drugs were enough for use or sale
- You possessed the drugs to sell or purchase them or resell them
Here is a detailed view of some of the terms that fall under the above-stated factors to understand them more clearly.
In California, the term possession is considered to be equal to the term control. The control might be actual, joint, or constructive.
When it comes to actual possession, it means that the offender had the drugs or controlled substance in a briefcase, pocket, or a backpack.
Constructive possession can be a bit more challenging to explain since it explains possession of a controlled substance without its physical presence, but with the capacity to access it. Most effective control is proven through circumstantial evidence, meaning that the evidence does not directly point out your guilt.
Joint possession explains a case where there are two or more people controlling the drugs. In most cases, the drugs are usually placed in a place where two or more parties have dominion.
Before you are convicted for possession of a drug for sale, the prosecutor must prove your knowledge about the drug, and the drug was a narcotic.
When explaining that someone knew that he or she possessed drugs, that the person was well aware of the presence of the drug. This would dismiss a situation where one was not aware of the presence of the narcotics on a friend’s car that he or she had borrowed.
On the other hand, knowing that the drug was an illegal substance means that you knew its name, its chemical makeup, and the sort of effects you expect from it. Other than knowing that you possessed the drug, the judge or jury might infer your knowledge from your reaction after discovering the narcotics. For instance, once you try to escape or throw away the drugs upon discovery, this would assume that you knew about their presence and nature.
The Substance was Enough for Usage or Sale
The quantity of the seized drugs should be enough for usage or sale to make prosecution under this statute credible. Residue or traces of the drug cannot be suitable to convict someone with possession of a narcotic for sale. However, the amount does not necessarily have to be sufficient to affect its user to be considered suitable for prosecution.
The Intention to Sell
Proving that you had the intention to sell is an aspect of prosecuting someone under Health and Safety Code 11351. This does not imply that you had the intention to sell the controlled substance personally to make the prosecution valid.
If the prosecutor demonstrates that you possessed an illegal drug, but cannot show that you had the intention to sell, you will be charged with a lesser offense for personal ownership under Health and Safety Code 11350.
Since it is hard to distinguish charging for drug possession for personal use and sale, it is recommendable to learn the difference to avoid confusing the two. Here is a detailed view of the difference between these two considerations.
Possession for Sale versus Possession for Use
Both possession for sale or use does not involve the actual transfer or sale of a controlled substance. That’s why both crimes are related to the intention of the possessor. It is challenging to prove intent, which makes it provable only by the factors surrounding the crime.
There are various factors that prosecutors and law enforcement depend on to establish the intent to sell. That’s why they rely on expert witnesses or narcotic officers to give an expert opinion on whether the defendant intended to sell the drugs. The expert witnesses will offer their opinion according to the factors described below.
The Quantity of the Illegal Drug
If the drugs you possessed were more than the average amount that a person would consume, the investigation or prosecution team would assume that they were meant for sale.
The only flaw that would disapprove of their assumption would be that you were stocking up the narcotic drugs for your usage. However, if you are running a business, such as a warehouse, and large amounts of drugs were found, this proves that the controlled substance was meant for sale.
The way that the controlled substances were packaged often describe that the substances were meant for sale. If the controlled substances were packed in baggies, bundles, balloons, or other forms associated with the sale of drugs, this would suggest your intention to sell them. If the prosecution or investigation team finds packaging material, this would prove your intention to sell the drugs.
Absence or Presence of Drug Paraphernalia
The presence of drug apparatus is a crime by itself. Drug paraphernalia involves instruments such as pipes, syringes, and other devices to help one consume an illegal drug. Since the apparatus indicates the use of the controlled substance, their presence would also support this claim.
However, if the investigation team finds items like measuring scales, or other tools used in the packaging, separation, or dilution of the controlled substances, they would conclude that the substance intended for sale.
Under the Influence
The fact that you were under the influence of a controlled substance might lead to an additional charge under Health and Safety Code 11550. The prosecution team would argue that most dealers are users and try to impose this evidence on your charge despite being inconclusive. Even so, you can have the charges reduced to violation of Health and Safety Code 11550 since it attracts lesser penalties compared with charges under Penal Code 11351.
Apart from the factors provided above, there are other elements that your prosecutor can use to prove your intention to sell based on the circumstances surrounding your case. These factors should show consistency or indication selling to make them viable for use during prosecution. The above-stated factors are just a few reliable samples that the prosecutor would try to negate or prove that you intended to sell controlled substances.
Penalties for Possession of a Controlled Substance for Sale in California
Violation of Health and Safety Code 11351 is a felony. A convict might be punished by probation for a year in county jail, two three, or four years of county jail service, or a fine that amounts to $20,000.
If the prosecutor can prove that your intention of engaging in multiple sales, you might end up being punished for every intended sale. You can also end up being deported if you are a legal alien or immigrant.
Several factors might lead to additional penalties apart from the ones described above. For instance, if you are convicted for purchasing or possessing cocaine based on sale, you will face a county jail sentence for three, four, or five years and a fine that amounts to $20,000.
Besides that, you can face additional penalties if controlled substances such as cocaine, heroin, or cocaine base. These penalties are as follows:
- Addition of three years if the substance is more than one kilogram
- Addition of five years if the substance exceeds four kilograms
- Addition of ten years if the drugs exceed ten kilograms
- An addition of fifteen years if the controlled substance is more than twenty kilograms
- Addition of twenty years if the substance surpasses a weight of forty kilograms
- Addition of twenty-five years if the drugs exceed a weight of eighty kilograms
If an offender receives an additional sentence under the weight enhancement, he or she will also face a maximum fine of $ 8,0000,000.
Also, if you get convicted for possession or purchase of a controlled substance for sale and have a prior felony conviction of a drug crime involving more than personal use, you will face an additional and consecutive of three years term for every prior felony.
One of the possible penalties that apply in a charge under Health and Safety Code 11351 is the possibility of probation. If you are placed on probation, you will have to adhere to specific terms and conditions for the crimes you were convicted of. These terms and conditions include:
- Non-violation of any law apart from a traffic infraction
- Visiting the probation officer as required by the probation terms
- Perform community service
- Compliance to random drug testing
These are only a few of the terms provided for your probation that the court can impose on you. If you violate any of these terms, the court might sentence you to the maximum period allowed by the law.
Legal Defense for Violating Health and Safety Code 11351
You should consider hiring an attorney once you are charged with Health and Safety Code 11351. Your attorney should use several legal defenses to argue the case on your behalf. The following are some of the popular legal arguments that your attorney can use as your defense.
Illegal Search or Seizure
Under the Fourth Amendment of the United States Law, it is unlawful for a police enforcement officer to conduct an unlawful search or seizure. There are several ways that a police officer can violate this law and includes:
- Searching without a warrant
- Searching beyond the extent of the order. For instance, searching your bedroom whereas the permit does not stipulate a search to such extent
- Illegal detention when a police officer stops you only to find out that the controlled substances that they eventually find cannot be used against you.
Once your attorney knows that the investigation officers illegally searched your property, he or she will file a motion to suppress the evidence collected against you. If the action succeeds, your charges will likely be disregarded or have them significantly reduced.
No Intention to Sell
When you are apprehended with the controlled substance without any intention to vend them, you might be acquitted from prosecution under Health and Safety Code 11351. However, it puts you eligible for prosecution under Penal Code 11350, which is a lesser charge that permits you to drug diversion.
Please note, this legal defense is suitable when you cannot challenge that you owned the drugs since there is overwhelming evidence to prove that fact. It could also be eligible when you can prove to the judge or jury that you briefly possessed them, and you were trying to do away with them.
Lack of Ownership
One of the crucial elements that your prosecutor needs to prove is that you possessed the drug, If you can prove to the prosecutor, jury, or judge that you did not possess the drugs, you can have your charges acquitted.
Lack of Awareness
Similarly to the prosecutor’s failure to prove the drug’s presence, you can also have your case acquitted if you were not aware of the nature of the controlled substance. For instance, if you believed that the cocaine that you were apprehended with is sugar, this might work as your legal defense.
Lack of knowledge can only work if you have no prior legal records showing any involvement with drugs. It would be much easier to use this legal defense if the judge or jury genuinely believes that you have no prior drug experience than being a known dealer or user.
You can have a valid defense for your possession of an illegal substance for sale if you have a valid prescription for the drugs from a certified physician, podiatrist, dentist, or veterinarian. However, the circumstances of your apprehension should not involve an amount of controlled substance that is substantially greater than your medical needs. If you have enough for your use, you will have no intention of selling the substance.
Crimes Related to Health and Safety Code 11351
Several offenses have a close relationship with the Health and Safety Code 11351. Some of these offenses involve similar conduct, charged in relation to 11351 HS, or charged in place of 11351HS. Some of these related offenses are:
Sales and Transportation of a Controlled Substance: Health and Safety Code 11352
Health and Safety Code 11352 prohibits the sale and transportation of the same illegal substance prohibited under Health and Safety Code 11351. Anyone convicted with felony risks 3, 4, or 5 years service in county jail or 3, 6, or 9 years if the transportation involves crossing two or more counties.
Anyone convicted of the same offense can also negotiate for a plea bargain and have the charge reduced to personal possession since it attracts a lesser charge.
Possession of Marijuana for Sale: Health and Safety Code 11359
Possessing marijuana for sale in California is a felony. This offense is punishable by 16 months, two, or three years service in county jail or a maximum fine of $10,000.
Opening or Maintaining a Drug House: Health and Safety Code 11363
It is illegal to open or maintain a place to continuously sell or give away controlled substances in such a place. This type of crime is referred to as operating a drug house.
It is common to have 11363 charged along with possession of a controlled substance for sale. Charges under this statute is a wobbler, and a felony would attract sixteen months, two, or three years sentence in state prison.
Find a Drug Crime Lawyer Near Me
Possession of a controlled substance for sale is a severe allegation that attracts severe penalties. That’s why you should hire a skilled Los Angeles Criminal Lawyer to help you take control of your case and come up with relevant strategies to help you win your case. We have vast experience in drug-related crimes, and we stand to be the best choice for clients living in Los Angeles, CA. Contact us today at 310-502-1314 and let us aggressively pursue the best results for you.