Possessing a controlled substance without a valid prescription is prohibited under California Health and Safety Code 11350. A controlled substance, in this case, can be defined as a chemical or drug regulated by the federal government under the Controlled Substances Act. This comprises all narcotics and illegal drugs like heroin, LSD, and cocaine. Also, if you are found in possession of certain prescribed drugs (such as codeine, oxycodone, and hydrocodone) without a valid prescription, you could be charged under HS 11350. Drugs such as marijuana, methamphetamine, and other stimulants are not covered under section Code11350. Possession of marijuana is prosecuted under section 11375, while Code section 11377 applies to the possession of methamphetamines and various other stimulants.
Before you can be convicted, the prosecution must establish that:
- You had a narcotic
- You did not have a valid prescription to show that you had the legal right to possess the substance
- You were aware that the drug was present and that it was an illegal substance,
- The amount you had in your possession was usable and not just traces
Let’s take a closer look at these elements.
In Health and Safety Code 11350, possession falls into three forms; actual, joint, or constructive. All these three types of possession of an illegal narcotic are considered to be illegal
- Actual possession
You are deemed to be in actual possession of a narcotic if you have direct physical control over it. This means that the drug is on your person, which can be in a body cavity, in your luggage, or in your pocket. It can be difficult to refute that you didn’t possess the controlled substance if you are found in actual possession. It is worth noting that the drug need not be on your person when the law enforcement officers conduct their search. The charges will stick even if you got rid of the drug moments before the police raid. For instance, the police conduct a traffic stop of your car and as they carry out their investigation, you immediately ingest the small quantity of cocaine you had in your bag but one of the officers sees you. In this case, you will be charged with section 11350 HS violation using the officer’s testament, since there is no doubt that you had the drug before swallowing it.
- Constructive possession
You have constructive possession of a controlled substance if the drug was not found on your person but at a site that you have control over. For instance, the police search your residence and find sachets of cocaine in your bedroom while you were away at work. You are in constructive possession since the drugs were found in your bedroom, a place you had control over and access to. If the drugs had been found in a bedroom that you share with your roommate, it would have been difficult to pin the charge on you, since it is unclear who the real owner of the drugs was. Hence, access to the location where the controlled substance has been discovered does not on its own prove possession.
- Joint possession
You are considered be in joint possession of a controlled substance when you and another individual or other individuals share constructive or actual possession of the substance. For instance, if sachets of cocaine are discovered in a closet that you share with your brother, and there is sufficient evidence to indicate that both of you had knowledge of the presence of the drug. Both of you can be charged with code section 11350 on account of joint possession.
Before you can be convicted of possession of a controlled substance, the prosecutor will be required to show that you knew of the drug’s existence and that it was an illegal substance. This means that you cannot be found guilty of code section 11350 HS if you either didn’t know of the presence and characteristic of the material. For instance, John asks Peter to deliver a container of salt to John’s uncle with the claim that it is special salt that treats hypertension. But in the real sense, it is a container full of cocaine. Peter takes the container and puts it in his bag. During a traffic stop, the container is discovered by an officer. In this case, Peter is not guilty because he believed that the container had salt in it.
In another instance, Peter is caught in possession of a drug that he believed was an over-the-counter drug because it was on Jack’s medicine cabinet. In this case, Peter knew that the drug was a controlled substance and he can be convicted even if he didn’t know the precise chemical makeup of the drug. If another person planted the drug in your apartment, on you or your car and you truthfully had no idea of its existence, then you cannot be convicted of code 11350 HS violation.
The prosecutor has to prove that you possessed enough of the drug to constitute a “usable” amount. This means that you cannot be convicted of possession if you had useless traces or residues. However, this does not imply that the drug was sufficient to have the effect it is ordinarily expected to produce (the narcotic effect). The main point is that you have to possess enough of the drug to consume it.
At Long Beach Criminal Lawyer, we have extensive experience defending drug possession charges throughout Long Beach and Torrance. We understand that there are no two cases that are completely similar, and for that reason, we treat every case in its unique form. We will develop a defense strategy that’s unique to your circumstances so as to guarantee the best possible outcome. We can also apply the same basic defense strategies that we have used in the past for as long as it can apply to your case. Our attorneys will challenge the prosecutor’s weak case forcefully and in the early stages of the trial. We will present every available testimony, legal argument and evidence in court that can bring about your acquittal. And when an acquittal is not possible, we will endeavor to have penalties and charges reduced using favorable petition deals.
Some of the most common legal defense strategies that we can apply against 11350 HS charges include:
You had a valid prescription for the drug
You are exempted from a violation of Health and Safety Code 11350 if there is proof that you had a valid, written prescription from a dentist or physician authorized to practice in the state of California. Also, for this defense strategy to apply to your case, you must have used the drug only in the amount, manner and consistency stated in the prescription. This defense does not apply if you are found in possession of more drugs, possess legally prescribed drugs belonging to another person, or you possess a fake prescription.
You had temporary possession
If you had momentary possession of a drug for an otherwise legal purpose, you could use this argument in your defense against a charge under California Health and Safety Code 11350 of possession of a controlled substance. For you to use this defense, you ought to prove that:
- The controlled substance was in your possession for transitory or momentary period; and
- The purpose of you possessing the controlled substance was in order to destroy, abandon or dispose it, and
- You had no intention of preventing the police from getting the controlled substance.
For you to assert this defense successfully, you must provide a preponderance of evidence in support of each of the elements listed above. The evidence must clearly show that the likelihood of each of the assertion being true outweighs the contrary. However, it is a better way to prove your innocence than if you were required to prove beyond a reasonable doubt.
It is the prosecution’s duty to prove that you had the knowledge of the characteristic of the drug and that you actually knew it was a controlled substance. The prosecutor may point to facts such as refusing to take a drug test, running from the cops, or having a prior drug record as circumstantial evidence that you aware that the narcotic was present and that it was an illegal substance.
If you were not aware of the presence of the drug or you believed it to be something else other than a controlled substance, this defense may be viable. Our attorneys can argue that you did not possess the necessary information of the presence or characteristic of the drug and hence cannot be convicted of possession.
For instance, you borrow your brother’s car and you are pulled over for speeding. You agree to a search and the law enforcement officer discovers a large amount of cocaine in the glove compartment. Whereas the prosecution can attempt to pin the charge of constructive possession because you had control over the car at that time, it can be difficult for the prosecution to sustain a charge of possession of a controlled substance if you had no idea that the drugs were there when you borrowed the car.
The Fourth Amendment gives you the right to be free from unreasonable searches and seizures. If your rights were violated in the course of your arrest, the evidence adduced against you may be excluded and therefore unacceptable in court. you could obtain a dismissal and be acquitted if you can establish that the stop was unlawful, excessive force was used to obtain the drugs, the police did not have a search warrant, the search went beyond the warrant limits or that the drug was planted. This can be achieved when your attorney files a motion to suppress evidence, which if granted will result in the evidence and even the case being dismissed.
Code Section 11350 Possession of a controlled substance was prosecuted as a felony before Prop 47 was passed. Since then, this crime is typically a misdemeanor charged under California Health and Safety Code 11350 HS. If convicted of this offense, you will face:
- A maximum of one (1) year in county jail and/or
- A maximum fine of one thousand dollars (US$1,000)
But, you could face felony penalties including 16 months, 2 years or 3 years in prison for the same crime if your record contains one of the convictions listed below:
- A sex crime conviction that requires you to register as a sex offender in California or
- A conviction in any of the crimes like sexual violence, murder, gross vehicular manslaughter under the influence or sex crime against a child under 14
If you were convicted prior to the passage of Prop 47 and received a felony conviction, you may appeal to have your sentence reduced to a misdemeanor. If you are an immigrant, a conviction for possession of a controlled substance could also result in your deportation, denial of naturalization and denial of reentry.
If you get charged with violation of 11350 HS, you can be given a chance to attend a drug diversion program, including Penal Code 1000 PC or Proposition 36. These programs serve as alternatives to jail or prison for individuals who have committed non-violent drug possession offenses. In this case, you earn a dismissal upon fulfillment of certain terms and conditions. The programs
If you've been charged with possession of a controlled substance, you can depend on the legal expertise of the attorneys at Long Beach Criminal Lawyer. We will guide you through the legal process and employ our skills in investigating all the specifics of your case. Our attorneys have extensive experience in successfully defending such cases and we’ll be dedicated to developing a solid defense strategy to achieve the best possible outcome, whether that means a straight dismissal or a drug diversion program. We also defend against aggravated allegations. For a free, no-obligation consultation with one of our friendly attorneys, contact us today, anytime 24/7/365 at 562-304-5121. We will be happy to give immediate assistance.