Elements of Possession of Drugs for Sale Crime under California Law
For one to be proven guilty of possession of a controlled substance with the intent to sell the prosecution must demonstrate six elements beyond reasonable doubt and these include:
- i) The defendant was in possession of a controlled substance
Being in possession of the drugs simply implies that you had direct and immediate control. However, in order to be convicted under California Health and Safety Code Section 11350 evidence must be provided to prove possession. Possession does not necessarily mean holding or touching the drugs, it could be that they were found in your car or home. Expert witness testimony and laboratory tests will be used to determine the drug’s chemical makeup and the expected results. Possession can be categorized into three different types and these include:
Actual possession means that you have direct and immediate physical control over the controlled substance- the substance is on your person. For instance, it could be that the drug is in your body cavity, pocket, or bag. Defending actual possession by arguing that you did not possess the drugs can be difficult, but by no means impossible. You could still be charged even if you possessed the substance shortly before the cops did their search.
Constructive possession simply implies that the controlled substance was discovered in a location that you have control over and not necessarily on your person. It could be that you exercise direct control of the place or through another person(s). However, sufficient evidence must be provided in this case because being near the drugs or a person with drugs does not necessarily constitute possession.
When you and another person/persons share actual possession or constructive possession, then you are considered to have joint possession. This could be constructive in a case where the drugs are found in a room that you share with a friend or spouse. Actual possession comes in a way that drugs were found on all of you or you are sharing items used in drug abuse or sale.
- ii) You knew of its presence and that it’s a controlled substance
You can be convicted if the prosecution is able to prove that you knew that the substance was controlled and capable of being used as a narcotic. This doesn’t go without saying that it's not a must for the prosecution to prove your knowledge on the specific substance you actually possessed.
iii) You possessed a usable amount of the drug, not just residue
If the controlled substance is large enough to be used by someone, it is considered as a usable amount. This is different from traces and residue because they are not likely to be used in a manner that’s against California Health and Safety Code. A very small quantity can, however, be considered a usable amount if it is capable of affecting your disposition upon its use in whatever amount.
- iv) You possessed a controlled substance with the specific intent to sell it
In order for you to be convicted, the prosecution must prove that you had the intent to sell and the controlled substance was not for your own personal use. Selling, in this case, means receiving money, services, or anything valuable as an exchange for the controlled substance. Some of the factors that are used to prove that you had the intent to sell or distribute drugs include the possession of:
- Large amounts of controlled substance that exceeded an amount typical of personal use
- Scales or other measuring devices
- Large amounts of cash
- An address book or list of buyers
- More than one cell phone
- Plastic baggies or other small containers that can be used for diving quantities
Defenses to Possession for Sale of a Controlled Substance (HS 11351)
Contacting an experienced drug defense attorney when charged with the serious drug crime of possession for sale is crucial in the development of an effective defense strategy. There are several legal defenses that could result in your charges being dismissed or reduced. Long Beach Criminal Defense Attorneys have the knowledge and familiarity in drug sales cases. These have enabled them to achieve dismissals and reduced charges in numerous cases. Retaining one of our drug crimes attorneys at an early stage of your case is critical to successful criminal defense. Here are some successful defenses that our attorneys can raise on your behalf:
- i) Lack of possession or control
The prosecution must be able to prove beyond reasonable doubt that you had possession or control over the drug in order for you to be convicted. This possession can either be actual, constructive or joint. However, in order to sustain a conviction against you, your attorney can argue that you didn’t have the mandatory possession or control of the substance. It’s insufficient to prove possession just because the drugs were found in a location that you have access to or you were near them.
- ii) You only had temporary possession of the drugs
Temporary possession of a controlled substance may be a defense to California Health and Safety Code 11351 charges if the purpose of the possession was otherwise lawful. This, therefore, means that you must be able to prove that:
- You only temporarily possessed the drugs for a momentary or transitory period
- The possession was for the purpose of abandoning, disposing of, or destroying the controlled substance in order to prevent someone else’s unlawful possession
- You did not intend to prevent the law enforcers from obtaining the substance for instance by flushing the drugs down the toilet when the cops knock on your door
The success in this defense highly depends on your ability to prove all the above elements by a prevalence of evidence. This means proving that all these items are true. Compared to proving beyond a reasonable doubt, the proof required in this case is lesser and fair.
iii) Lack of knowledge
A conviction for the possession of a controlled substance can only be possible if you knew you possessed the drug and also had full recognition of the fact that it was a controlled substance. However, if you were not aware of the drugs and their illegal nature, you should be acquitted of illegal possession. This kind of defense is only applicable to some cases and for it to work in your favor, you must have no prior drug record, you agreed to take a drug test, and/or you never ran from the cops. Moreover, the prosecution must be able to prove that you knew about the drug presence and if you appeared completely clueless when you were caught, you can’t be convicted of drug possession for sale.
- iv) Valid prescription
If you had a valid, written prescription from a physician licensed to practice in California, then you may have a defense to your case. In this case, the burden of proof weighs more on the prosecution because they must prove beyond reasonable doubt that there was no valid prescription. Your attorney can argue that you had a valid prescription if you have a condition that’s treated with a controlled substance. The only exception to this defense lies mainly in the amount of controlled substance that you had in possession. If it was substantially greater than your personal medical needs, the defense may not work and the prosecution can use this to prove possession with intent to sell.
- v) Illegal search or seizure
You have the right to be free from unreasonable “searches and seizures” by law enforcement as per the Fourth Amendment to the United States Constitution. This, therefore, implies that the police must comply with certain formalities and procedures when conducting searches and arrests. These formalities include having a search warrant, only searching within the scope of the warrant and having sufficient probable cause to make an arrest. If the police failed to follow the formalities and illegally obtained evidence, any drugs that they find probably cannot be used as evidence against you. Your defense lawyer at Long Beach Criminal Defense Attorneys can ask the judge to have the evidence excluded by filing a Penal Code 1538.5 PC motion to suppress evidence. This can increase the chances of having the charges dismissed or significantly reduced.
- v) No intent to sell
To be convicted of this offense, the prosecution must prove that you had the intent to sell the controlled substance. You should be acquitted of this offense if you, on the other hand, can be able to prove that the possession was for personal use and not for sale. Proving intent to sell can be difficult and the prosecution will have to use circumstantial evidence. Your charges can be reduced or minimized entirely if the prosecution cannot prove intent to sell. Your defense attorney could also argue that you only had momentary possessions for the purpose of disposing of the controlled substance.
Possession for Sale of a Controlled Substance Penalties, Punishments, and Sentencing
In California, possession with intent to sell is a felony according to California Health and Safety Code section 11351. A conviction for this crime is punishable by:
- probation and up to a year in county jail
- 2, 3, or 4 years in county jail
- a maximum $20,000 fine
- probation with no jail time but community service, a work release program and drug counseling or substance abuse classes
- formal probation with a probation officer
However, addition punishment could apply depending on the type of controlled substance and the overall amount. For instance, if you were caught with heroin or cocaine, you face an additional 3 years if the substance exceeds one kilogram by weight, ten years if the substance weighs more than ten kilograms and twenty years if it weighs more than 40 kilograms. A conviction could also lead to deportation if you are a legal immigrant.
Fighting Possession for Sale of a Controlled Substance
A conviction for possession of a controlled substance with intent to sell can result in very serious consequences and punishments. If you have been charged with this crime in the Long Beach area, it is paramount to hire an experienced drug defense attorney who will come up with the best strategy to defend you against the charges that you are facing. Our attorneys will examine your case to see which defense could best apply. We have handled many possession for sale cases with highly successful results. Call (562) 308-7807 to discuss your case directly with one of our competent attorneys. You can as well fill out our online contact form to be contacted for a free initial consultation. We are available to answer any questions you have.