Though California is often seen as one of the more liberal states (particularly in regards to widespread (now legal) recreational and medical marijuana, this doesn’t apply when it comes to other drug possession laws. If you are caught in possession of a controlled substance in California, you can expect to be prosecuted and face penalties. A local defense attorney can assist you in combating these charges and avoiding the most serious consequences.
It isn’t common to get a jail sentence for simple possession, but it is possible under the California statutes. And there are alternative options available that a defense lawyer can analyze your case, and determine if you qualify for such options or whether penalties can be avoided altogether.
What Is “Possession”?
Possession of a controlled substance refers to you having drugs under your control. While this could definitely apply when you have them in your pocket, they don’t have to be on you for you to be charged with possession. In your glove box, on the sidewalk next to you, or in your home—there are many situations that could warrant a possession charge.
California Drug Possession – Laws
Under California’s Health and Safety Code Section 11350, nearly all possession of a controlled substance charges are considered misdemeanor offenses.
The exceptions to this include a handful of non-criminal possession offenses like:
- Marijuana possession
- Possession of drug paraphernalia
- Being under the influence of drugs
Any simple possession of other drugs is a misdemeanor charge. These include:
- Ecstasy, LSD, Mushrooms
- Prescription drugs, whether narcotics, painkillers, or substances that have medical applications
A misdemeanor offense means you are at risk of more than a year of prison. Unlike other states, which typically prescribe a sentencing range for judges to choose your penalty from, California does not.
If you are caught in possession of drugs you will face felony charges and a litany of potential punishments. Everything from the amount of drugs you had on you to your criminal history could play a role in determining your ultimate sentence if you are found guilty.
Drug Sentencing Reforms under Proposition 47
In November 2014, California voters passed Prop 47 which reduced most simple drug possession arrests from possible felony charges with state prison time to misdemeanor offenses.
It also applied retroactively, so if you were previously convicted of a felony possession charge, you can get it reduced to a misdemeanor, and expunged. You have to submit a reclassification & resentencing request to the courts by November 2017. If you need assistance with that, an attorney can help.
Drug Possession Penalties
Alternatives to Incarceration
The state of California has several options available that could save you from the harshest consequences. Your eligibility for these programs depends on your criminal history, the jurisdiction of your charges, and the court’s determination of whether you are worthy of another chance.
California’s Proposition 36 was passed in 2000. It was developed to save the state money and to keep people out of prison for the most minor drug offenses. If you qualify for “Prop 36”, you will be required to participate in drug treatment rather than jail time. This program is set aside for nonviolent drug possession offenses. You may not qualify if you have any prior violent convictions on your record.
Deferred Entry of Judgment
Used only by first-time drug offenders, a deferred judgment case allows you to serve a period of probation in lieu of prosecution. Typically, you admit to the offense and enter six months of drug treatment. If you remain trouble free for a year, the initial charges are dropped. If at anytime the probation department or prosecutor determines you are not following the predetermined rules you can be prosecuted for the original charge.
Drug courts in California are a collaborative effort to reform people charged with drug offenses and return them to the community as law-abiding” citizens. For a possession charge in drug court, you are usually put under supervision for 12 months. During this time you are subject to rules and random drug testing. You may be required to undergo treatment, maintain employment, and participate in counseling.
Just how California drug charges affect your life can vary from person to person. And while an experienced defense lawyer has represented all kinds of defendants in different cases, they know each case is unique and needs individualized attention. Contact us today to speak with a local experienced drug possession attorney who can give you more personalized insight into your case.
Distribution & Sale Drug Offenses in California
Felony drug possession charges under California law include possession for sale, and transportation for sale.
Possession for sale
This simple means that you had any useable amount of a controlled substance in your possession, and intended to sell it. There is no minimum quantity other than that vague standard.
Transportation for sale
Transportation for sale uses the same elements as possession for sale “useable quantity” and “intent to sell”, and adds the element that you are transporting it for the purpose of selling it. Most charges of transportation for sale also include a charge of possession for sale.
Penalties for transportation for sale of any controlled substance are 2-4 years in prison, and fines of up to 20,000.
Defenses for felony drug charges
Prosecutors and police will charge these felony offenses, even with tiny amounts of any given drug, if there is any other evidence or circumstances that might suggest intent to sell. These could include:
- Having other selling paraphernalia nearby, such as a scale, baggies, twist ties
- Quantity – a larger amount may be more suggestive of planning to sell.
- Witness testimony, from civilian witnesses, police or informants
If we think there is a deal to be made, the defense argument against a felony offense is often that is was just for personal use, and should be reduced to a misdemeanor.
But the police also often screw up, so a motion to suppress on any grounds of illegal search is almost always a go-to defense motion in a serious case like this. Police procedures to initiate a legal search without a warrant are very specific and narrow.