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Drug Crimes

Judge's gavel with handcuffs, drugs and pills

In this section we will cover the most common drug related crimes that are prosecuted.  Although California has in man instances decriminalized possession and use of some drugs, you can still be prosecuted for a variety of drug crimes as both misdemeanors and felonies.

Below is a list of the common drug crimes that are charged and what the elements

Under the Influence of a Controlled Substance – Health and Safety Code section 11550

Elements:

In order to prove that a person was under the influence of a controlled substance, the prosecution must show:

  1. The defendant willfully used a controlled substance a short time before their arrest; or

  2. The defendant was willfully under the influence of a controlled substance when they were arrested.

 

Penalties:

 

A violation of this statute is a misdemeanor which can result in informal probation or custody time in county jail up to one year.  The court may also as a term of probation order you to attend narcotics anonymous or other drug related treatment programs.

Concentrated Cannabis Law – Health and Safety Code section 11357

Elements:

In order to prove possession of concentrated cannabis, the prosecution must show:

  1. The defendant possessed a controlled substance;

  2. The defendant knew its presence

  3. The defendant knew of the substance’s nature or character as a controlled substance;

  4. The controlled substance was cannabis or concentrated cannabis; and

  5. The cannabis was more than 28.5 grams or 8 grams of concentrated cannabis

 

Penalties:

 

Simple possession of concentrated cannabis or over 28.5 grams of cannabis is a misdemeanor.  If found guilty, you can face up to six months in jail and a fine up to $500.  You may also be placed on informal probation. 

Possession for Sale – Health and Safety Code section 11351

Elements:

In order to prove possession for sale, the prosecution must show:

  1. The defendant unlawfully possessed a controlled substance

  2. The defendant knew of its presence

  3. The defendant knew of the substance’s nature or character as a controlled substance

  4. When the defendant possessed the controlled substance, the defendant intended to sell it

  5. The substance was a controlled substance or an analog of a controlled substance

  6. The controlled substance was in a usable amount

 

Penalties:

 

Possession for sale is a felony and is punishable by a term in prison of either 2, 3, or 4 years.  You may also face a maximum fine up to $20,000.  If found guilty, you will lose your right to possess a firearm, voting rights, and you may face deportation.

Sale of a Controlled Substance – Health and Safety Code section 11352

Elements:

In order to prove sale of a controlled substance, the prosecution must show:

  1. The defendant sold/furnished/administered/gave away/ transported for sale/imported into California a controlled substance

  2. The defendant knew of its presence

  3. The defendant knew of the substance’s nature or character as a controlled substance

  4. The substance was a controlled substance or an analog of a controlled substance

  5. The controlled substance was in a usable amount.

 

Penalties:

 

If you are found guilty of selling a controlled substance, you will face a felony conviction.  The penalties for this can result between 3 to 9 years in custody as well as a fine up to $20,000.  You will also loose your voting and gun rights and may face deportation.

What is a Controlled Substance?

Controlled substances are regulated by the United States Controlled Substance Act which oversees the manufacture, possession, and use of various substances. Controlled substances include not only cocaine, LSD, PCP, and heroin, but also include various prescription drugs such as hydrocodone and oxycodone.

What is Possession?

One of the elements for many of the above crimes is that the defendant must have possessed the controlled substance.  To have possessed the substance, it means that the defendant exercised control over it, not necessarily to be holding or touching the substance.  

For Example:

The police monitor a street corner and witness what they believe to be drug related activity going on.  When the police stop one of the individuals, the drugs are located inside a chip bag hidden behind a bush that the suspect was seen going back and forth near the bush. The prosecution will use this to establish possession through the theory that the suspect has been exerting control over the chip bag and the substance inside.  

What is a Usable Amount?

A usable amount is defined as a quantity that is enough to be used by someone as a controlled substance.  Useless traces or debris are not usable amounts.  On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

So basically, it has to be enough to be used, but it does not have to be enough to affect the user.  This prevents prosecution for cases where there is only trace amounts of the substance inside

Defenses to Drug Charges

Most drug cases come down to a few main defenses such as the drugs were not in your possession or that you had a lawful prescription for the substance that was found.  For instance, if you were arrested for hydrocodone possession, but you had a prescription for the medication, then you are not guilty of possession.

Another defense to drug possession is through the challenging of the search and seizure of the drugs through a violation of your Fourth Amendment rights. The Fourth Amendment protects you from unlawful search and seizures by law enforcement and evidence obtained through an unlawful search are considered “fruit of the poisonous tree” and inadmissible.

Substance Abuse Services

The reality is that drug addiction is a disease and is often treated as a crime.  However, should you be ready to seek treatment, below is a link to a list of substance services in Solano and Contra Costa County.

Solano County

https://admin.solanocounty.com:4433/depts/hss/sas/default.asp

Contra Costa County

https://cchealth.org/aod/treatment.php

Let Kevin Help!

As a prosecutor, Kevin saw the benefits when addicts received the help they deserve. Custody time is not the place but rather one of the many services available within the community.  Let Kevin help you today to keep you out of custody, defend your rights, and help you seek the treatment you deserve.