If you’ve recently been arrested on the charge of possession for sale of a controlled substance in Long Beach or anywhere in Southern California, you’re not alone. These kinds of arrest are extremely common in Long Beach and a criminal defense attorney can come to your immediate aid. Under the California Health and Safety Code 11351 HS, it’s a felony to possess controlled substances with the intent to sell. This statute does not necessarily refer to the actual distribution or sale of controlled substances but simply possessing the drugs with the intent to sell or distribute them. This crime is more serious than simple possession as it carries severe and long-lasting penalties. A drug conviction on your record can make it difficult to obtain gainful employment or even continue to live out your life the way you want to.
At Long Beach Criminal Lawyer, we stand ready to assist you any time 24/7/365. If you or a loved one is facing possession for sale charges, call 562-304-5121 for a free legal consultation.
What the Prosecution Must Do to Prove Intent to Sell
As provided by California Health and Safety Code section 11351, the prosecution must establish all the elements of the crime in order to obtain a conviction. These include:
- You illegally possessed a controlled substance,
- You were aware of its presence,
- You were informed of the substance’s nature as a controlled substance,
- The substance was in usable amount for sale or consumption as opposed to just remains, and
- You possessed/purchased the controlled substance with the precise intention of selling.
The Legal Definition of terms
A drug or chemical use manufacture, possession and use are regulated by the government under the United States "Controlled Substances Act". For the purposes of HS 11351, a controlled substance is any drug regulated or banned by the US Controlled Substance Act. Some of the common controlled substances include cocaine, heroin, peyote, gamma-hydroxybutyric acid ("GHB"), opiates and opiate derivatives, and certain hallucinogenic substances. Also, illegally possessed prescription drugs such as codeine and opioid can count.Possession
Possession, under HS 11351 means having immediate and direct control over the substance. The drug could either be in your home, car, bag, pockets, or any other place that you exercise control. This type of control can be either actual, constructive, or joint.
Actual/ physical possession
Actual possession implies that the substance is on your person. This could be in your pocket, cavity, body, or bag.
You’re deemed to have constructive possession over a controlled substance if you have access to it or was found in a place that you exercise direct control (you don’t have to physically possess it). Constructive control is usually validated by circumstantial evidence (evidence that doesn’t directly point to guilt)
Joint possession refers to a situation where two or more individuals share actual or constructive possession of a controlled substance. For instance, if you had the intent of selling drugs that were found in an apartment that you share with a friend or spouse, that could be considered joint possession. However, if the drugs or objects used in drug sale were found on every one of you, the charge could become actual possession.
Before you can be convicted of possession for sale, the prosecutor must demonstrate that you knew you possessed the drug, and it was, in fact, a controlled substance.
Knowledge is broken down into two types, which include:
Knowledge that you possessed the drug
It would be unfair to arrest or charge someone for possessing drugs for sale if he/she was not aware that the drugs were in his/her possession. For instance, if you borrowed a friend’s car and law enforcement officers found drugs in the trunk, you should not be held responsible if you were not aware that the narcotics were in the vehicle.
Knowledge that it's a controlled substance
To be convicted for possession for sales, you’re not expected to know the precise name of the substance, its chemical makeup, or kinds of effects the drug produces. Knowing that the drugs are illegal controlled substance is enough to have you convicted. What’s interesting is that the judge may conclude that both these types of “knowledge” have are present by the simple fact that you were in possession of the drug. Knowledge may also be assumed based on how you conducted yourself after the drugs were discovered. For instance, if you throw balloons containing cocaine out of the window when pulled over by police, it shows that you knew you possessed drugs and also knew of their illegal nature.
There was enough of the drug to use/sell
Residue and traces of a drug are not enough to support a conviction for possession for sale. To be convicted of this offense, the quantity of the drug must be enough that it can be consumed as a drug by those to whom you intend sell to.
The intent to sell
One of the most difficult part of the prosecution’s case in a possession for sale charge is establishing whether you possessed the drugs with the outright intent to sell them. This, however, does not imply that you must have the intent to sell the drugs personally. You can still be convicted of this offense so long as you intended for someone to sell the drugs. Selling could denote as receiving a valuable item, money, or services in place of the drug. Factors that the prosecutor may point to prove intent to sell include:
- Large quantities of drugs
- Measuring Scales
- Packaging of the drugs (separated in baggies/units)
- Huge quantities of money
- A list of buyers or an address book
- Number of visitors coming to your home
- Length of visitor’s stay
- Numerous cell phones
However, you can be convicted of a much lesser offense of possession under California Health and Safety Code 11350 HS if the prosecutor can establish that you were in possession of the drugs but fails to prove that you intended to sell them.
Possession for Personal Use Vs. Possession for Sale
Drug possession offenses revolve around the possessor’s intent, which can be difficult to prove. Without the defendant’s voluntary confession, intent has to be proven by circumstantial evidence. When trying to establish possession for sale, for instance, law enforcement and prosecutors may rely on expert witnesses (a narcotics officer) to offer an opinion that the controlled substances were to be sold by the defendant in question based on the following common factors:
The quantity of the controlled substance
If found in possession of drugs exceeding the amount an “average” person would consume, it will be assumed that you possess the drugs for sale. However, the fault in this argument will point towards the fact that a habitual consumer will usually stock up if he/she has the capacity to do so.
The packaging of the drug
The most damaging kind of proof in a possession for sale cases if how the controlled substance is packaged. If the drugs are packaged in several separate balloons, baggies, bindles, or bundles, the police will assume that this type of packaging suggests the drugs were possessed for sale and not personal use.
The presence/absence of drug paraphernalia
Possession of drug paraphernalia can be a separate crime under HS 11364 and could either help or hurt your case. Drug paraphernalia comprises syringes, pipes, and any other instrument used to inject, ingest, or consume the drug. Since paraphernalia usually designates use, having it could support the claim that the drugs were for personal use. But if you had items such as measuring instruments, weighing scales, or other tools used to separate, package, or dilute drugs, the prosecutor can claim that you possessed the drug for sale.
You’re under the influence
If at the time of the arrest you were under the influence of drugs, this could prove that the drugs were for personal use and not for sale. Nonetheless, this evidence is not definite since a majority of drug dealers are also users. Also, you could face additional charges under HS 11550 for being under the influence of a controlled substance.
Penalties for a Conviction for Possession for Sale
In California, possession of drugs for sale is a felony. If you’re convicted for the violation of HS 11351, you’ll face 2, 3, or 4 years in county jail, probation and a maximum jail term of one year in a county jail, and/or a fine of up to $20,000. You could also be placed on probation without having to spend time in jail. However, you’ll be required to attend a work release program, do community service, and attend a drug counseling program. If the prosecutor is able to demonstrate that you intended to take part in multiple sales, the penalties can be enforced in connection with each intended sale. Moreover, a conviction under this section can lead to deportation you’re a legal alien or immigrant.
You face additional years in jail if you’re convicted of violating HS 11351 and the controlled substance is cocaine, cocaine base, or heroin. For instance, you face an additional five years if the substance exceeds four kilograms, fifteen years if it weighs more than 20 kilograms, and twenty-five tears if it exceeds 80 kilograms. A fine of up to $8,000,000 may be applicable.
If you have a minimum of one conviction for a prior California drug felony involving more than personal use, you could face an additional and consecutive three-year term for each of the past conviction.
Legal Defenses to a Charge of Possession of Controlled Substance for Sale
There are several defenses that an experienced Long Beach drug crimes defense attorney can raise on your behalf against charges of possession of controlled substance for sale. The most common ones include:
Illegal search and/or seizure
A law enforcement officer can violate California's search and seizure laws in numerous ways, including, conducting a warrantless search, a search that exceeds the scope of the warrant, or an illegal detention. If your criminal defense attorney suspects that you may be a victim of unlawful search and/or seizure, he/she will likely file a motion to suppress evidence under Penal Code 1538.5 PC. If this motion is successful, your charges may be dismissed or reduced.
Lack of possession
If your drug crimes defense lawyer is able to convince the judge and the prosecutor that you were not in possession of controlled substances, you’re eligible for acquittal. This defense mostly applies to cases involving constructive possession.
Lack of intent to sell
You may be in possession of a controlled substance, but you may not have the intent to sell them. If your attorney can prove this, you’re entitled to an acquittal of this charge. While it may appear counterintuitive to acknowledge that you did possess drugs, personal possession is viewed as a much less serious crime and may allow you to undertake a drug diversion program.
This defense can also be applied if you can convince the jury/judge that even though you possessed the drugs briefly, you only momentarily possessed them while in the process of trying to get rid of them.
Lack of knowledge
Similarly, you can’t be convicted of drug possession for sale if the prosecutor is unable to prove that you knew about the drug’s presence or their narcotic nature. Holding on to the belief that cocaine is actually PCP isn’t a binding legal defense, but believing that cocaine discovered in a baggie was sugar might be. Lack of knowledge as a defense works best in incidents where there is no legal record of previous drug experience under defendant’s name. This kind of defendant can successfully convince the jury/judge that s/he was not aware that the drugs were a controlled substance compared to a known dealer or user making a similar claim.
Contact Long Beach Criminal Lawyer Today
A possession for sale conviction may result in severe penalties and life-changing consequences. Having an experienced and dedicated drug crimes attorney to fight for your freedom is vital. The attorneys at Long Beach Criminal Lawyer can help formulate a strong legal defense strategy that could see the charge reduced or dismissed. We could also get you enrolled in a drug diversion program instead of facing jail term. Contact us today at 562-304-5121 for a free, no-obligation consultation.