If arrested for drug charges, do not underestimate the effort and time the prosecution team will put into making sure you are convicted. The court might subject you to penalties like fines, incarceration, drug treatment, and a criminal record with a lifetime impact. However, it would be best if you do not give up without a fight. Orange County Criminal Defense Team handles a full spectrum of drug offenses. We understand that every criminal charge is unique and can handle your case with the attention to detail it deserves. We can also advise you on your standing and challenge the evidence against you to help you achieve the best possible outcome.
Introduction to Drug Crimes
California drug offenses cover a wide range of crimes. The public's perception of drugs has changed over time, mainly regarding bhang, but the laws are slowly changing. Possession of some drugs could result in criminal consequences while manufacturing or trafficking drugs is treated seriously and might be prosecuted as a federal or state offense.
As the U.S fights drugs, the Golden State invests significant human resources in combating the manufacturing, distribution, and possession of illegal controlled substances. The severity of penalties for any drug offense depends mainly on the type of drug, the amount involved, and whether the accused has a previous criminal record or not.
Some of the most common drug crimes include:
Possession of Controlled Substances
HS 11350(a) makes it a crime to be in illegal possession of any controlled substances. A controlled substance is any chemical or drug whose the government controls its use, possession, or manufacture per the U.S. Controlled Substances Act.
Additionally, this section applies to prescription drugs illegally prescribed to a person.
You have the substance's possession if you have control over it. It can be through somebody else or personally. You don't have to touch or hold something to possess it.
Please note that at least one person might possess the drugs simultaneously.
To be found guilty of this crime, you should be aware of the existence of the controlled substances and the substances were controlled substances.
Consequences for Violation of HS 11350(a)
Generally, possession of controlled substances is a California misdemeanor. It is punishable by one thousand dollars in fines and a year in jail.
However, it can be prosecuted as a felony if you have a prior severe felony or sex crime conviction. The felony conviction attracts a three-year county jail sentence.
Sometimes the defendant might qualify for a drug court or drug treatment program. The program permits you to serve your sentence in the drug diversion program in place of prison or jail.
Additionally, a conviction might have detrimental consequences on your firearm rights.
Some of the defenses you can use to fight the allegations include:
- You can only be sentenced for this crime if you possessed the drug. Therefore, it's a defense to prove you didn't have the narcotic.
- Under this section, you aren't accountable if you had a binding, written prescription of controlled substances from a certified veterinarian, dentist, chiropodist, or doctor. The prosecution team has the burden of establishing beyond any reasonable doubt that your prescription was invalid.
- According to the 4th Amendment to the United States Constitution, you should be free from unreasonable police searches and seizures. Therefore, if the officers acquire evidence from the illegal search and seizure, then the judge should exclude that proof from your case. It can result in charge reduction or even case dismissal.
Under the Influence of a Controlled Substance
HS 11550 makes it an offense to be under the influence of a narcotic drug or controlled substance.
To be convicted of HS 11550, the prosecutor must prove that you:
- Intentionally used a narcotic drug or controlled substance, or
- You were deliberately under the influence of the drug or substance
Common narcotics or substances subject to HS 11550 include heroin, PCP, hydrocodone, methamphetamines, and codeine. Please note that marijuana is excepted from this code section.
The phrase "under the influence of a controlled substance" means the substance has affected your:
- Mental or brain condition
- Physical or muscles condition, or
- Nervous system.
Any misconduct or impairment isn't required to prove HS 11550 charges.
Penalties for Violating HS 11550
It is a California misdemeanor punishable by a year in county jail.
Sometimes, the accused person might be eligible for a drug diversion program that entails drug counseling and drug rehabilitation. The program allows people found guilty of non-violent drug crimes to serve sentences in drug counseling programs in place of serving time.
A conviction could result in adverse immigration consequences. In other words, if an immigrant is sentenced, they can be marked inadmissible and deported.
Fortunately, an experienced drug defense lawyer can help you beat these charges using legal defenses like:
- You weren't under the influence
- Your intoxication was not voluntary
- The drug was legally administered
California Driving Under the Influence of Drugs
VC 23152(f) makes it a crime to drive under the influence of drugs.
Any drug that could impair your ability to operate a vehicle is covered in this section. It includes:
- Illicit drugs like ecstasy, methamphetamine, LSD, cocaine, and heroin
- Prescription drugs like oxycontin, Vicodin, Ambien, and oxycodone
- Over-the-counter drugs such as sleeping pills, allergy medicine, and cold medicine
Since there isn't a per se legal limit, a police officer has a significant amount of discretion when making drugged driving arrests and can arrest motorists they suspect of being under the influence of drugs. Generally, a drug recognition professional conducts a thorough investigation. The investigation involves:
- Taking vital symptoms
- Interviewing the suspect
- A field sobriety test
- Taking note of objective intoxication symptoms
Moreover, the police can request you to submit to a chemical test.
As far as this context is concerned, you drive a motor vehicle by deliberately using physical control to make it move. The engine doesn't necessarily have to be on.
Consequences for VC 23152(f)
Violation of VC 23152(f) is a wobbler. It can be a felony or a misdemeanor depending on factors like:
- Whether your arrest came following an accident
- Whether you have previous DUI convictions
- Whether aggravating factors existed in your arrest
A first-time DUI conviction is punishable by:
- A six-month county jail sentence
- A maximum of five years of probation
- DUI school
- Suspension of the driver's license
- Fines and penalty assessment that range three hundred and ninety dollars and one thousand dollars
Some of the legal defenses you can assert include:
- You weren't impaired during your arrest
- Innocent explanations of drug impairment signs
- There wasn't probable cause for your DUI traffic stop
Possession for Sale of Controlled Substance
Under HS 11351, it is a California felony to possess controlled substances intending to sell them.
To be convicted of HS 11351, the prosecutor should establish that you:
- bought or possessed drugs,
- were aware when you acted so,
- knew that the drugs were controlled substances,
- possessed adequate drugs to sell or use, and
- you either possessed the drugs intending to sell or bought the drugs planning to resell them.
The term possession in this context refers to control. The control can be:
- Actual possession — It is the simplest to identify and define. A perfect example will be if you have illegal drugs in your briefcase or your person.
- Constructive possession — You've constructive possession over something if you have access to it or are entitled to control it.
- Joint possession — Refers to a situation where at least one person has drug possession.
How Possession for Sale of Controlled Substance Differs from Possession for Personal Use
The main difference revolves around the defendant's intent.
Intent could be hard to establish. Absent a clear, voluntary confession to the offense and circumstantial evidence (surrounding circumstances) should prove your intent.
Typically, there are numerous factors that the prosecution team uses when attempting to prove the intent to sell. These factors include:
- Your controlled substance's quantity — If you have more narcotics than what a normal individual would consume, the prosecution team will assume that you have controlled substances for sale.
- The drug's packaging — Generally, how controlled substances are packaged is a damaging form of proof in possession of sale cases. If the controlled substances are packaged in many separate balloons, bundles, baggies, or bindles, the police will say that this packaging suggests that you possess the drugs for sale.
- You are under the influence — If you are drunk during the arrest, it means the drugs were intended for personal use. Nevertheless, most dealers are also users, and this proof is not conclusive.
- Absence or existence of drug paraphernalia — Having drug paraphernalia might either assist or hurt your criminal case. Drug paraphernalia might be syringes or pipes for injecting, ingesting, or consuming the drug. Since paraphernalia suggests use, its existence could support the claim that these drugs are for personal use. Nonetheless, suppose the law enforcers find you with items such as a measuring instrument, weighing scale, or tool to separate, package, or dilute drugs. In that case, the discovery will strengthen the prosecutor's case against you.
Penalties, Sentencing, and Consequences for Violating HS 11351
HS 11351 is a California felony. It carries the following penalties:
- One year in jail and probation
- A maximum of four (4) years in jail
- Twenty thousand dollars in fines
If the prosecutor proves that you planned to make several sales, the judge might execute these consequences concerning every sale.
Additionally, if you are a legal alien or immigrant, a conviction could lead to deportation.
If convicted of buying or possessing cocaine base for sale, you'll face twenty thousand dollars in fines and up to five (5) years in jail.
Moreover, if found guilty of HS 11351, and the drugs are cocaine, cocaine base, or heroin, the court will subject you to an additional:
- Five years if it exceeds kilograms
- Three (3) years provided the drugs are at least a kilogram
- Ten (10) years if the drugs exceed 10 kilograms
- 15 years provided the controlled substance exceeds 20 kilograms
- 20 years as long as the controlled substance is more than forty kilograms
- Twenty-five years if the controlled substance is more than eighty kilograms
If you face an enhanced sentence under one of these weight enhancements, you'll face fines of eight million dollars.
- found guilty of buying or possessing a controlled substance for sale, and
- have more than one previous felony conviction for a drug offense whose involvement goes beyond personal use,
you'll face consecutive and additional three (3) years for each previous California felony conviction.
Per drug court, PC 1000, and Proposition 36, drug diversion permits a non-violent drug possession crime defendant to serve time in a drug treatment program in place of state prison or county jail sentence. If a person completes their program, the drug charges could be dismissed.
Nonetheless, not everyone qualifies for drug diversion, and it has limitations like it doesn’t apply to drug sale crimes. Consequently, it is essential to retain a defense attorney who can negotiate charges reduction to personal possession.
Defending HS 11351
The most practical defense per HS 11351 depends mainly on the case facts. Some of the common defenses include:
- The defendant did not possess the controlled substances
- The controlled substances were not yours
- The controlled substance was for personal use
- You were not aware of the existence of the narcotics
- Law enforcer falsified proof
Manufacture of Imitation Controlled Substances (Health and Safety Code 109575)
According to HS 109575, it is illegal to possess, manufacture, or distribute, intending to distribute imitation controlled substances.
Imitation-controlled substances are fake drugs planned to be visually mistaken for what is real. In other words, it could be:
- a substance manufactured to look like the physical appearance of the controlled substance, and
- a substance that a prudent individual cannot differentiate from the real drug by outward appearance
The crime is charged as a misdemeanor punishable by one thousand dollars and six months in county jail.
How to Fight the Charge
Regardless of the severe penalties, you can raise any of the following defenses. A valid legal defense can help reduce or dismiss your charges.
These defenses include:
- Falsely accusations
- Illegal search and seizures
- The defendant did not imitate the controlled substance
Sale and Transportation of Controlled Substances
HS 11352 bans the transportation and sale of controlled substances.
To be found guilty of this section code, the prosecutor must prove that:
- The defendant did either of the following with a controlled substance,
- Furnished it
- Sold it
- Administered it
- Gave it away
- Imported it into the state
- Transported it for sale
- The accused person was aware of the drug's existence
- The defendant knew the drug was a controlled substance
- The drug was in a usable amount if the defendant was accused of transporting it for sale
Transporting a controlled substance means carrying or moving it from one location to another regardless of the distance. You can transport controlled substances by air, road, water, or foot.
How the Prosecutor Team Builds Drug Trafficking Cases
Typically, HS 11352 investigations involve sting operations to catch people committing the offense via deceptive means. Here a law enforcer poses as a seller or buyer of the drug, hoping to lure the suspect into conduct that supports this section code arrest.
Sometimes the arrests stem from information acquired from confidential informants.
Another method of collecting evidence is through surveillance posts or observation. It involves the police setting up camp to observe any suspected activity. Generally, it's near the suspect's business or home or where drugs are usually sold.
Penalties and Consequences
Transporting or selling controlled substances is charged as a felony. A first-time conviction is punishable by:
- Formal (felony probation)
- Twenty thousand dollars in fines
- A maximum of five years in jail per realignment program or up to nine (9) years in jail if found guilty of transporting drugs for sale across at least two county lines within the Golden State
Also, HS 11352 is a deportable offense per federal immigration laws.
You might not qualify for a suspended sentence, or formal probation is one of the statements below is correct:
- You’re found guilty of HS 11352 for offering to sell or selling methamphetamine, cocaine base, or cocaine, and you've at least one prior conviction for possessing for sale, offering to sell, or selling any drug.
- You are sentenced for breaking HS 11352 for offering to sell or selling more than 14.25 grams of heroin.
- You are sentenced for HS 11352 for offering to sell or selling any quantity of heroin, and you've at least one prior conviction for either HS 11351 or HS 11352.
Enhanced Sentences and Aggravating Factors
Here are numerous scenarios that can result in more severe consequences and penalties for this crime:
Drug Trafficking Near a Homeless Shelter or Drug Treatment Facility
The judge might subject you to an additional year in county jail if all the statements below are correct:
- The drug involved was cocaine base, cocaine, or heroin, and
- The trafficking happened on the grounds or within one thousand feet of a homeless shelter or drug treatment facility
Furnishing or Selling Drugs to Specific Persons
The court will impose harsher penalties if you were aware or ought to have known that you were administering, furnishing, giving away, or selling controlled substances to a person who:
- Has a previous violent felony conviction
- Was under drug problem or mental health disorder treatment
- Was expectant
Previous Convictions Effects
Suppose found guilty of HS 11352, and you've more than one previous felony conviction for a drug offense apart from for personal use. In that case, you might face a consecutive and additional three (3) years in jail for every previous conviction.
Sale of Synthetic Cannabis
California HS 11357.5 makes it an offense to either:
- Give or sell synthetic cannabis to somebody else, or
- Possess or use synthetic cannabis
Also known as a designer drug, synthetic cannabis is counterfeit marijuana. Some of its common names include K2, spice, black mamba, herbal incense, and potpourri. The drug's active ingredients are manufactured in the lab, and they mimic the effects of THC (Tetrahydrocannabinol), marijuana's main ingredient.
The illegal sale of the designer drug is a California misdemeanor punishable by six months in county jail and one thousand dollars in fines.
Unlawful use or possession of synthetic marijuana can be a misdemeanor or infraction, depending mainly on how many times you have violated this statute. It attracts a six-month jail sentence and fines.
The judge might award the defendant summary probation in place of time.
Marijuana Cultivation Law
California HS 11385 defines the offense of unlawful cultivation of marijuana.
Since the passage of Proposition 64, it is lawful to grow marijuana for recreational purposes, provided the cultivator is at least 21 years of age and does not cultivate above six (6) cannabis plants.
It is an infraction under HS 11358 for a person between 18 and 20 to grow weed. The offense attracts a fine of one hundred dollars.
It's a California misdemeanor if a person older than 21 cultivates plants that exceed six (6). They will pay a maximum fine of five hundred dollars and spend six months in jail.
You can also face a felony if you have over six plants and you:
- Are a registered sex offender
- Have at least two HS 11358 convictions
- Violated an environmental law in your cultivation activity
- Have a serious violent felony on your criminal record
A felony conviction is punishable by ten thousand dollars in fines and three years in jail.
Under PC 1000, some persons sentenced for illegal cultivation might postpone the sentence imposed so they can attend and complete their drug treatment. It is called deferred entry of judgment(DEJ).
An individual qualifies for DEJ if:
- they were arrested for growing excessive weed plants, and
- it was their first or second non-violent offense.
Are There Legal Defenses to Illegal Cultivation Accusations?
Some of the legal defenses your criminal defense lawyer can use include:
- The marijuana belonged to another person
- Illegal search and seizure
- The plant you are growing is not hash
Find a Drug Crime Defense Attorney Near Me
California has stringent laws regarding illegal drugs, and in most cases, the consequences and penalties are broad and harsh. Not only is incarceration a likelihood, but you will also pay huge fines if found guilty. If charged with a drug crime, it is paramount to retain an experienced lawyer who can develop robust defense strategies for you. At Orange County Criminal Defense Team, we understand that how evidence was acquired plays a significant role in the defense. Therefore, we can analyze whether the police adhered to the law when obtaining the proof against you. If there was an illegal seizure, we could work aggressively to suppress that evidence. To have a free case review and learn more about your available defense options, contact us today at 714-467-2772.