In the U.S., all the states regulate and control the possession of controlled substances. In California, it is a violation of the Health and Safety Code 11350(a) to possess a controlled substance. The state of California classifies not only well-known drugs like cocaine, meth, and heroin as controlled substances but also the compounds involved in producing them. The charges and penalties the court imposes on defendants depend on several factors. The factors include whether the drugs were for sale to others, the type of drug, the amount of drug in your possession, and your criminal history.

You could face drug possession charges if you possess any controlled substance or narcotic drug. The violation of this statute attracts detrimental penalties like fines and imprisonment under California law. If you face the charges of possession of a controlled substance, the Chula Vista Criminal Attorney will help you create a convincing defense to challenge your charges.

Possession Of A Controlled Substance In California — HS 11350

This statute defines possession of a controlled substance as having under your control any drug whose possession is regulated by the law. It also explains the crime as having a narcotic or an unlawful drug in your possession under federal or California law for which you do not have a valid prescription. Therefore, for a prosecutor to charge you with violating HS 11350, they must prove some elements. The elements could include:

  • You possessed a controlled substance

  • You did not have a prescription for the substance

  • You were aware of the substance’s nature as a controlled substance

  • You had a usable amount of a controlled substance

You could only possess a substance if you have control over it. Possession could be through another person or direct possession. You do not have to touch or hold the controlled substance to possess it. For instance, you could have constructive possession of a drug if it is in your closet, storage unit, bag, car trunk, or locker. However, it is essential to note that accepting to purchase a controlled substance by itself does not mean that you have control over the drug. In addition, two or more individuals could possess a controlled substance simultaneously.

You must be aware of the following to face the charges of possession of a controlled substance under HS 11350:

  • The presence of a controlled substance

  • That the substance you were possessing is a controlled substance

Based on the above elements, the prosecutor does not have to provide evidence that you were aware of the specific controlled substance you possessed. Instead, the prosecutor only needs to prove that you knew the substance was some drug.

A usable amount is a quantity that is sufficient for you to use as a controlled substance. Useless debris or traces are not regarded as usable amounts under HS 11350 of the California law. However, a usable amount does not have to be sufficient in strength or quantity to intoxicate you.

Generally, a controlled substance is a chemical or drug whose use, manufacture,or possession is regulated by the government according to the United States Controlled Substances Act. The unlawful drugs under this jurisdiction include peyote, cocaine, LSD, and heroin. The statute also prohibits prescription drugs not legally prescribed to you, like valium, codeine, hydrocodone, ketamine, Xanax, and oxycodone. Stimulants and marijuana are not covered under HS 11350. Health and Safety Code 11377 covers possession of meth and other stimulants. Possession of marijuana is covered under HS 11357.

Penalties For Violating HS 11350 In California

Under California drug sentencing guidelines, most simple drug possession cases for personal use are charged as misdemeanors instead of felonies. You could face the punishment as follows:

  • A fine that does not exceed $1,000

  • A jail term that does not exceed one year in a county jail

In certain circumstances, you could face felony charges for unlawfully possessing narcotics. This could happen if you have a prior conviction for a serious felony or a sex crime. You could face a jail term that does not exceed three years in a county jail for a felony conviction.

In some criminal possession cases, you could also qualify for a drug court or drug diversion treatment program. The programs allow individuals who have committed non-violent drug possession crimes to serve their sentence in drug treatment programs instead of prison or jail. Defendants facing charges for non-violent drug crimes qualify for drug diversion according to Prop 47. The purpose of proposition 47 is to encourage treatment over prison for drug offenses because many drug offenders benefit from drug treatment programs since they are also drug addicts.

You have to plead guilty to the possession charge when entering a drug diversion program. Your sentence will be on hold while you complete a drug treatment program. The judge could dismiss your case once you complete the program and meet some other requirements. When applying for a job or apartment, you do not need to disclose your drug charges. Your defense attorney could help you fight for your chances of entering a drug diversion program to avoid other criminal consequences.

Negative Immigration Consequences

You could face adverse immigration consequences if the court charges you with possession of a controlled substance. Violation of HS 11350 could lead to detrimental immigration effects depending on the facts of your case. Under the immigration law of the United States, certain criminal charges in California could lead to the deportation of a non-citizen. Some charges could also make you inadmissible in the United States. Almost all drug offenses fall under the category of inadmissible or deportable crimes.

Adverse Effects On Your Gun Rights

You could also face adverse effects on your gun rights if the court convicts you under HS 11350. Under California law, you are not allowed to possess or acquire a gun in California if you are convicted of a felony.

In a drug conviction, a jail term is not the only consequence. A criminal record for possession of a controlled substance could have additional consequences as follows:

  • Renting an apartment — Many landlords in California will not rent you an apartment if a background check reveals you have a conviction for possessing a controlled substance

  • Custody cases — The court could look unfavorably on a drug conviction while granting custody of your children

  • Job searches — If you are convicted of possessing a controlled substance in California, finding a job could be a tall order. You would need to undergo a background check, which would reveal a conviction. You could also fail to get a security clearance to do government work.

  • College financial aid —if you are a student in California, you could miss getting financial aid to pay for a university or college education if the court convicts you of possessing a controlled substance. A conviction could also prevent you from graduating.

Expungement Of Your Criminal Conviction

The good news is that you could get your conviction of drug possession expunged. According to Penal Code 1203.4, an expungement relieves you from virtually all disabilities and punishments arising out of your charges. As a primary rule, PC 1203.4 authorizes felony or misdemeanor crimes expungement provided you:

  • Complete misdemeanor or felony probation successfully

  • Avoid any other criminal conviction, jail term, or probation

Defenses To HS 11350 Charges

You could raise a legal defense to challenge the possession of a controlled substance charge. A criminal defense attorney could help you determine which defenses would apply to your charges. Some of the legal defenses could challenge the evidence or testimony and the stated facts of the case. Other legal defenses could challenge procedural errors. You could also challenge your drug possession charges based on an affirmative defense. An affirmative defense means introducing your proof indicating that you were acting lawfully or the prosecution does not have a case against you. Some of the defenses you could employ include:

The Controlled Substance Was Not Yours

If you face the charges of possession of a controlled substance, you could claim that the drug does not belong to you or you had no idea that the drug was in your possession. However, this defense will not be substantial because the police do not have to find the substance directly in your possession or on your body to charge you with substance possession. The prosecutor only needs to show that you accessed or had control of the controlled substance. It could be problematic if, for instance, someone in your vehicle was using the controlled substance at the time or just before your arrest. This is why it is essential to hire a criminal defense attorney before making any arguments or claims regarding the evidence against you.

Police Entrapment

The law in California allows the police to set up sting operations. However, you are a victim of police entrapment if the informants of the police induce you to commit an offense that you otherwise would not have committed. Additionally, if the police proceed to threaten or harass you into violating HS 11350, entrapment could be a possible defense. This legal defense is often complex and needs the help of a drug crime defense attorney to navigate. However, if undercover police sell drugs to you or scores drugs from you while posing as a customer, the incident is not entrapment.

Crime Lab Analysis

In most drug cases in California, not all evidence is what it looks like. Just because something looks like a controlled substance does not mean it is controlled. The prosecutor must provide substantial evidence that a seized controlled substance is genuinely illegal. He/she must prove this by sending the drug to a crime lab for analysis.

Your attorney could raise issues about discrepancies or errors in the crime lab analysis report. If problems arise, your attorney would recommend to the court to have the crime lab analyst testify at trial.

Unlawful Search And Seizure

The United States Constitution Fourth Amendment offers protection to the citizens from the government. The amendment gives powers to the police to search a person’s property or body only under certain circumstances. The defense of illegal search and seizure is common in drug possession cases in California.

A controlled substance found in ‘’plain view’’ can be seized and presented in court as proof in possession of a controlled substance case. For example, a substance could be in plain view on a car's dashboard, where the police can locate it while conducting a lawful traffic stop. However, if the police harass the defendant or open their vehicle’s trunk without their consent and locate the substance, the action amounts to an illegal search, provided there was no search warrant. The good news is that the California court will exclude any evidence at trial if the police obtained it through unlawful means. Often, the evidence obtained through illegal search is crucial to the prosecutor's case. However, the government will drop the charges if the police violate your Fourth Amendment rights.

Chain Of Custody Problems

If the prosecutor accuses you of possessing a controlled substance, you could argue that the substance is missing. When the police seize the drug in question upon execution of a search warrant or during arrest, they usually put it in an evidence locker or room. During the trial, your attorney could question whether the substance presented as proof is the one obtained from you. Often, this defense is known as an attack on the chain of custody. In a chain of custody attack, you could argue that the police who handled the controlled substance during the investigation did so improperly. However, this tactic could only go through depending on the number of the police who dealt with the substance and how well they make and maintain the records of this activity.

Medical Exception

The medical use of a controlled substance is never a challenge for federal drug possession convictions. It would only apply in states where medical use of a controlled substance has been legalized. Typically, you need a doctor’s signed recommendation in the states with these exceptions.

Related Offenses

Other crimes in California are related to the illegal possession of a controlled substance. They include:

Possession Of A Controlled Substance For Sale — HS 11351

It is a felony under HS 11351 of the California law for any person to possess certain controlled substances to sell them. This statute applies to illicit street drugs like LSD, cocaine, and heroin. Common prescription drugs like codeine, oxycodone, and hydrocodone also fall under this statute. If the prosecutor accuses you of possessing a controlled substance for sale, he/she must prove the following elements for you to face the charges:

  • You purchased or possessed a controlled substance

  • You were aware you possessed the substance

  • You knew the substance's nature as a controlled substance

  • You possessed a sufficient amount of the substance to sell or use

  • You possessed the drug with the intent to sell it, or you purchased the drug with the intent to resell it

Penalties For Violation Of HS 11351

The California HS 11351 makes it a felony to possess a controlled substance with the intent to sell it. If you are found guilty of this crime, you will face the following penalties:

  • A fine of up to $20,000

  • A jail term of one year in county jail and probation

  • A jail term of two, three, or four years in a county jail

If the prosecutor provides substantial evidence that you intended to commit multiple sales, the above punishment could be imposed for each intended sale. In addition, if you are convicted under HS 11351, you could be deported if you are a legal alien or legal immigrant.

You could also face the following penalties if the court convicts you of possessing or purchasing cocaine base for sale:

  • A fine of $20,000

  • A jail term of three, four, or five years in a county jail

You could also face enhanced punishment if the court convicts you of violating HS 11351, and the controlled substance is cocaine, heroin, or cocaine base. Some of the enhanced penalties could include:

  • You could face an enhanced jail term of three years if the substance exceeds one kilogram

  • You could face an enhanced jail term of five years if the drug exceeds four kilograms

  • You could face an enhanced jail term of ten years if the drug exceeds ten kilograms

  • You could face an enhanced jail term of 15 years if the drug exceeds 20 kilograms

  • You could face an enhanced jail term of 20 years if the drug exceeds 40 kilograms

  • You could face an enhanced jail term of 25 years if the drug exceeds 80 kilograms

If the court imposes an additional jail term on you under one of the above weight enhancements, you could also face a hefty fine of up to $8,000,000. The court could also sentence you an additional and consecutive three-year term for each prior felony conviction if the following happens:

  • The court convicts you of purchasing or possessing controlled substances for sale

  • You have at least one prior felony conviction for another California drug offense involving more than mere personal use

Defenses For HS 11351 Charges

  • Lack of knowledge

  • Lack of possession

  • No intent to sell

  • Illegal search and seizure

Sale And Transportation Of Controlled Substances — HS11352

The California HS 11352 makes it a crime for any person to administer, import, sell, furnish, or transport controlled substances. Under this statute, the illegal drugs to sell or transport include heroin, opiates, opiate derivatives, and peyote. In addition, certain prescription drugs like hydrocodone and codeine also fall under this statute. If the prosecutor accuses you of sale and transportation of controlled substances, he/she must prove the following elements for you to face the charges:

  • You sold, gave away, furnished, or administered the substance

  • You knew of the substance’s presence

  • You knew of the substance’s nature as a controlled substance

  • You had a usable amount of a controlled substance

Penalties For Violating HS 11352

Under HS 11352 of California law, it is a felony for any person to sell or transport a controlled substance. If the court convicts you for violating HS 11352, you could face the following penalties:

  • A fine of up to $20,000

  • Felony or formal probation

  • A jail term of three, four, or five years in a county jail

  • A jail term of three, six, or nine years if you are guilty of transporting drugs for sale across two or more counties within California.

There are other incidents where you could face severe penalties for transporting or selling controlled substances. For example, drug trafficking near homeless shelters or drug treatment facilities is prohibited under California law. If you are found guilty of trafficking within 1000 feet of a homeless shelter or a drug treatment center, you could face an additional one-year sentence on top of the primary jail term. You could also face one extra year on top of the applicable jail term if the controlled substances involved were cocaine base, cocaine, or heroin.

Defenses To HS 11352 Charges

  • Police misconduct

  • Lack of knowledge

  • Lack of intent

  • Entrapment

  • Illegal search and seizure

Under The Influence Of A Controlled Substance — HS11550

This statute makes it a crime for any person to be under the influence of a controlled substance or a narcotic drug. If the prosecutor accuses you of violating HS 11550, they must prove the following elements for you to face the charges:

  • You willfully used a controlled substance

  • You were willfully under the influence of the substance or drug

The substances prohibited under HS 11550 include hydrocodone, Pcp, meth, codeine, and heroin.

Penalties For Violating HS 11550

Violation of HS 11550 is a misdemeanor under California law. If the court finds you guilty of this crime, you could face a jail term of one year in county jail. You could sometimes qualify for a drug diversion that consists of drug rehabilitation and drug counseling.

Find Chula Vista Criminal Attorney Near Me

The charges for possession of a controlled substance attract both incarceration and fines. In some instances, you could be eligible for pretrial diversion. If you are under investigation for violating HS 11350 in California, consult a competent attorney to review the facts of your case. At Chula Vista Criminal Attorney, we have skilled attorneys who could help you create a solid defense to fight your charges. Contact us at 619-877-6894 and talk to one of our attorneys.