Despite the enactment of Proposition 36, which allows eligible non-violent drug offenders to enroll in drug treatment programs instead of serving jail time, the sale of controlled substances is still a severe offense.
If you are arrested or under investigation for an alleged possession of a controlled substance for sale offense, hiring a defense attorney is a decision you cannot regret. Having a skilled attorney with a prior record defending clients with similar or related drug charges can mean the difference between a lengthy jail sentence, a favorable plea bargain, or dismissal of the alleged crime.
Attorneys at Chula Vista Criminal Attorney can offer you the aggressive and reliable services you need during this difficult time. Our experienced and fearless attorneys will thoroughly investigate your case and prepare the best defense approaches that could work to your advantage to secure a favorable outcome.
Understanding Health and Safety Code (HS) 11351
HS 11351 defines the crime of possession of controlled drug substances for sale and the penalties you could face upon conviction. According to this law, it is a felony offense to have controlled drug substances in your possession with the criminal intent to distribute or sell them. Controlled drug substances that could attract a charge under HS 11351 include (but are not limited to) the following:
- Prescription drugs like codeine, Vicodin, and oxycodone.
- Unlawful drugs like marijuana, LCD, methamphetamine, cocaine, heroin, opiates, and peyote.
Aside from the possible lengthy jail time and unaffordable fines, a conviction for the alleged HS 11351 violation could count as a "strike" on your criminal record under the Three Strikes Law.
What the Prosecutor Must Prove for a Conviction Under HS 11351
For you to be guilty of the alleged HS 11351 violation, the prosecution team must be ready with clear evidence to prove the elements explained below beyond a reasonable doubt at trial:
You Were in Possession of an Unlawful or Controlled Drug Substance
As the name implies, the alleged HS 11351 violation is a crime that relies on whether you had possession of the drug. To that end, the prosecutor must prove beyond a reasonable doubt that the drugs in question were in your possession.
According to this law, having a controlled drug substance in your possession means you have control over it, and this control could be actual, joint, or constructive. Here is a brief description of the different types of possession the court will consider for a conviction for the alleged HS 11351 violation:
Also known as physical possession, actual possession is the easiest to identify and define. For instance, the prosecutor can argue that you had actual possession of an unlawful or controlled drug substance if it was in your person, your pockets, or your belongings like a bag at the time of the arrest.
Having constructive possession of a controlled substance means it was in a location or place you had control over. For instance, the prosecutor can argue that you had constructive possession of an illegal or controlled substance if it was in your vehicle or apartment.
Having joint ownership or possession of a controlled drug substance is also possible. For instance, when the police find cocaine in an apartment you share with your friend, the prosecutor can argue that you and your roommate had joint possession of a controlled substance.
You Knew That You Had a Controlled Drug Substance in Your Possession and Were Aware of its Nature
It would be unfair to receive a guilty verdict against you for the alleged HS 11351 violation if you were unaware a controlled substance was in your belongings or possession. For a conviction under this statute, the prosecutor must prove beyond a reasonable doubt that you were aware of the controlled substance's presence and knew of its nature in the eyes of the law.
For example, if you hired a car with heroin hidden in the backseat or the trunk, you cannot be guilty of the alleged crime because you were unaware of the presence or existence of the drug in that vehicle. Further, the prosecutor must also prove and provide evidence that you knew the substance in question was a controlled drug substance.
It is important to note that the prosecutor does not need to prove that you knew the drug's name or its chemical makeup to obtain a conviction for the alleged HS 11351 violation.
You Had the Criminal Intent to Sell the Controlled Drug Substance
The third element the prosecutor must prove to secure a conviction against you for the alleged HS 11351 violation is that you intended to sell or distribute the controlled drug substance for money or services. In most cases, the prosecutor will rely on circumstantial evidence to prove that you had the intent or motive to sell the controlled drug substance.
Below are examples of circumstantial evidence the prosecutor could use to prove this element of the crime:
- You had drug paraphernalia or equipment in your possession, for example, weighing scales, small-sized baggies, and measuring instruments.
- You had packaged the controlled drug substance in several separate balloons, baggies, bindles, or bundles.
If the police arrested you in an undercover sting operation, proving that you had the motive or intent to distribute or sell the controlled drug substance in violation of HS 11351 is not challenging.
You Had a Large Amount of Controlled Drug Substance in Your Possession
You would not be guilty of the alleged HS 11351 violation if you had trace amounts of a controlled drug substance. The court requires the prosecutor to prove with proper evidence that you had a large or usable quantity of a controlled drug substance in your possession for a conviction under HS 11351.
Potential Penalties For the Alleged HS 11351 Violation Conviction
The crime of possession of an unlawful or controlled drug substance for sale is a felony under HS 11351. Once the judge convicts you of the alleged crime at trial, he/she will schedule a sentencing hearing to decide a fair sentence for your unique case. The sentence you will face for a conviction under this statute will depend on the aggravating and mitigating factors relevant to your unique case.
Without aggravating factors, a conviction for the alleged HS 11351 violation will attract the following potential penalties:
- Up to $20,000 maximum fine.
- A jail term of up to four (4) years.
- Probation and up to one (1) year of jail time.
If the prosecutor can prove that you had the motive to engage in multiple sales, the court will impose the above penalties for each intended sale.
Aggravating Factors That Could Harshen Your Penalties Upon a Conviction Under HS 11351
Below are examples of aggravating factors that can harshen the above-mentioned standard penalties for the alleged HS 11351 violation conviction:
The Type of Controlled Drug Substance You Had in Your Possession
If you are guilty of having cocaine for sale in your possession, you should expect a jail term of up to five years and a fine not exceeding $20,000.
The Amount of Drug Substance You Had in Your Possession
The amount of controlled substance you had in your possession could also influence the potential jail time you will face upon a conviction under HS 11351. Generally, if you are guilty of the HS 11351 violation and the controlled drug substance you had in your possession is heroin, cocaine, or cocaine base, you will face additional:
- Three (3) years in jail if the drug substance weight exceeds one (1) kilogram.
- Five (5) years in jail if the drug substance weight exceeds four (4) kilograms.
- Ten (10) years in jail if the drug substance weight exceeds ten (10) kilograms.
- Fifteen (15) years in jail if the drug substance weight exceeds twenty (20) kilograms.
- Twenty (20)) years in jail if the drug substance weight exceeds forty (40) kilograms.
- Twenty-five (25) years in jail if the drug substance weight exceeds eighty (80) kilograms.
When you receive additional jail time under any of the above weight enhancements, you will also pay a fine not exceeding $8,000. It is worth noting that the above-mentioned additional jail time and fine are consecutive to the above-listed standard penalties for the alleged HS 11351 violation conviction.
Your Criminal Record
If you have at least one past felony conviction on your record for any drug offense, you will face an additional three years in jail upon the alleged HS 11351 violation conviction. The more felony drug crime convictions you have on your record, the more severe your penalties will be upon a conviction under HS 11351.
Probation Conditions to Expect Upon the Alleged HS 11351 Violation Conviction
With convincing mitigating arguments backed up with evidence, the court could sentence you to probation and reduce your jail time to one (1) year. If you qualify for probation upon a conviction for the alleged HS 11351 violation, the court will craft unique conditions that you must comply with for the maximum time required by the court.
Below are a few of the conditions the court could require you to comply with during your felony probation:
- Avoid drugs and alcohol.
- Avoid the company of certain people.
- Regular meetings with a probation officer.
- Enroll in a drug counseling program.
- Agree to stay arrest-free.
- Submit or consent to random searches by the court-appointed probation officer.
- Perform community service.
If you violate any of the above terms of your probation, the court will either:
- Terminate the probation and sentence you to jail for the maximum time required for a conviction under HS 11351.
- Reinstate the probation with the same or stricter conditions.
Other Potential Consequences of a Conviction Under HS 11351
Aside from the jail time and hefty fines, the alleged HS 11351 violation conviction will attract other collateral negative consequences, such as:
Unfortunately, if you are a non-citizen, the alleged HS 11351 violation conviction will attract immigration consequences like deportation, regardless of your stay in the country.
A "Strike" Under the Three Strikes Law
Although the three strikes law under Penal Code (PC) 667 is a controversial sentencing scheme, it could apply to your case, resulting in harsher penalties upon a conviction for the alleged HS 11351 violation. PC 667 will double your sentence for a conviction under HS 11351 if you have a violent or severe felony conviction on your criminal record.
If you have two severe or violent felony convictions on your criminal record, the alleged HS 11351 violation conviction will attract up to 25 years to life in prison.
A Criminal Record
Like any other conviction, the alleged HS 11351 violation conviction will remain in your criminal record. That means potential landlords, employers, and anyone interested in your criminal background will know you have a conviction for a drug crime, negatively affecting your life plans.
Unless you obtain an expungement or Governor's pardon, the alleged HS 11351 violation conviction will remain on your criminal record for your entire lifetime.
Defenses to Challenge the Alleged HS 11351 Violation
To increase your odds of obtaining a desirable outcome on the alleged HS 11351 violation, you could want to work with an attorney in every stage of the prosecution process. Your defense attorney will investigate the alleged crime and talk to all eyewitnesses, if any, to build suitable defenses to present at trial for the best possible outcome.
Some of the best and most common defenses your attorney could use to challenge the alleged HS 11351 violation include the following:
You Did Not Have the Intent to Sell or Distribute the Drug Substance in Question
Your intent for having a controlled substance in your possession will determine the type of drug charge the prosecutor will file against you. When charged under HS 11351, the prosecutor must prove with clear evidence that you intended to distribute or sell the controlled substance that you had in your possession to obtain a conviction against you.
If his/her evidence is insufficient or unclear to prove you had the intent to sell the drug substance, you will not be guilty of the alleged HS 11351 violation. Although this defense is an admission that you indeed had a controlled substance, it could work in your favor for a less severe misdemeanor drug charge with lighter penalties.
You Had No Knowledge the Substance Was a Controlled Drug Substance
Knowing or being aware that the substance in question was in your possession is a crucial fact or element in the alleged HS 11351 violation. Generally, the prosecutor cannot obtain a guilty verdict against you for the alleged HS 11351 violation if you did not know a controlled drug substance was in your possession.
As mentioned above, if the substance was in a car you hired or borrowed from a friend to run some errands, the court will not convict you for the alleged HS 11351 violation.
There Was a Police Misconduct Issue on the Alleged HS 11351 Violation
Your criminal defense attorney can also argue that you are a victim of police misconduct, for example, coerced confessions and illegal searches and seizures. If the evidence the prosecutor has obtained resulted from an illegal search of your person, vehicle, or belongings, it will be inadmissible in court.
When evidence is inadmissible in court, the prosecutor can not use it at trial to obtain a conviction against you.
The Arresting Officers Entrapped You to Commit the Alleged HS 11351 Violation
Entrapment is a common and viable defense for drug offenses, including the alleged HS 11351 violation. Entrapment happens when a police officer knowingly lures or tricks you into violating a law or committing an offense.
Although it is lawful for a police officer to offer you a chance to commit an offense during an undercover sting operation, it is unlawful for an officer to threaten, harass, or coerce you into committing a crime.
An entrapment defense does not mean you admit guilt in the alleged HS 11351 violation. Instead, your attorney argues that you would not have committed the alleged violation if it were not for the persistent harassment by the arresting officers.
The Drug Substance in Question Was Not in Your Possession
If the prosecutor cannot provide evidence and an argument to prove that the drug substance in question was in your possession, you will not be guilty under HS 11351. That means your defense attorney can challenge this crucial element of the crime by arguing that the alleged drug substance was not in your possession to obtain the best possible outcome on the alleged HS 11351 violation.
For instance, the bag or house where the arresting officers found the drug substance legally belonged to someone else. In that case, it makes sense to argue that the controlled substance was not in your possession to obtain a dismissal of the alleged HS 11351 violation or a lighter charge.
Eligibility for a Drug Diversion Program Under Proposition 36
According to PC 1210, you would be eligible for a drug diversion under Prop 36 if you are guilty or charged with a non-violent or non-severe drug possession crime.
A drug diversion is a legal practice of allowing qualifying defendants to have their convictions or charges acquitted once they successfully (with no violation) complete a court-approved drug treatment program.
Since a drug sale offense like the alleged HS 11351 violation does not qualify for a diversion, your attorney will strive to convince the prosecutor to reduce your charge to a lighter offense like simple possession for personal use under HS 11350. If that happens, you will qualify for a drug treatment program under Prop 36 to avoid the detrimental consequences of serving jail time upon conviction.
Aside from the Prop 36 drug diversion program, you could also qualify for a drug diversion under PC 1000. Your defense attorney will help you choose the most favorable drug diversion for your unique case. Generally speaking, if you are an excellent candidate for a drug diversion, you should expect a court-approved drug-treatment program that will include the following services:
- Drug and alcohol education.
- Residential and outpatient services.
- Narcotic replacement therapy and detoxification services.
- Aftercare services.
Other Related Offenses Chargeable Alongside or Instead of the Alleged HS 11351 Violation
Several drug crimes are related to the alleged HS 11351 violation because they have similar or closely related elements of the crime necessary for a conviction. Here are examples of a few of these offenses:
Transportation and Sales of Controlled Drug Substances
HS 11352 makes it unlawful to transport and sell controlled drug substances prohibited under PC 11351. The main difference between this crime and the alleged HS 11351 violation is that the prosecutor must prove that a transaction occurred for a conviction under HS 11352. If guilty of this crime, your sentence could include the following:
- A maximum of five (5) years of jail time (Up to 9 years jail sentence when the prosecutor proves you transported drugs across two county borders).
- Up to $20,000 maximum fine.
Possession of Marijuana for Sale
According to HS 11359, it is a felony to have marijuana in your possession with the intent to sell it. Although marijuana possession for recreational use is legal for adults aged 21 and above, having specific amounts (typically more than 28.5 grams) in your possession could attract charges under PC 11359.
A conviction under this statute could attract a fine of up to $10,000 and a jail term not exceeding three (3) years.
Opening or Maintaining a Drug House
Opening or maintaining a drug house with the criminal intent to continuously or repeatedly give away or sell any unlawful or controlled drug substance is a crime under HS 11366. The prosecutor will likely file this related offense against you alongside the alleged HS 11351 violation.
Since it is a wobbler, you should expect felony or misdemeanor penalties upon a conviction. A felony conviction for the alleged HS 11366 violation will attract a jail term not exceeding three (3) years and a maximum fine of no more than $10,000.
If charged as a misdemeanor, a conviction will carry a jail term of not more than one (1) year and a fine not exceeding $1,000.
Find a Defense Attorney Near Me
We invite you to call our attorneys at Chula Vista Criminal Attorney at 619-877-6894 if you or a loved one is under arrest or charged with the crime of possession of a controlled drug substance for sale. Quick intervention into the alleged HS 11351 violation by our seasoned attorneys could weaken the prosecutor’s case against you, resulting in a lighter misdemeanor charge or even dismissal of the entire case.