Drug Possession Lawyer | HS 11350 & HS 11377

Don’t fight your drug possession HS 11350 & HS 11377 charges alone. Our San Diego drug possession attorneys at Elite Criminal Defense have the tools and resources to build the best defense and present your options.

Controlled Substance Possession – HS 11350 & HS 11377

HS 11350 criminalizes possession of a wide variety of illicit drugs, including both illegal drugs, like cocaine and heroin, and prescription drugs like hydrocodone. In general, possession under 11350 is a misdemeanor. However, if you have a serious felony or sex crime on your record, possession of a controlled substance could be a felony. 

On the other hand, HS 11377 focuses solely on methamphetamine possession rather than a wide range of drugs. Similar to possession under 11350, this crime is typically a misdemeanor if the meth is in your possession for personal use, but it can be a felony for those with a prior conviction for certain crimes, such as a sex crime or other serious offenses such as murder.

What Must the Government Prove for Drug Possession?

In order to be convicted of drug possession, the prosecution will have to prove the following four elements:
 

1. You were in possession of the controlled substance
   Possession isn’t always as straightforward as it sounds. Usually in California, “possession” can refer to any of the following scenarios: 
   Actual Possession: You are holding the drugs, they are in your pockets, or they are in the purse you are wearing. 
   Constructive Possession: You are in control over the area where the drugs are located. 
   Joint Possession: You and someone else (or multiple people) share possession. 
   
   

2. You knew about the presence of the drugs
   You knew that the drugs were there in your purse, pocket, etc. 
   
   

3. You knew the drugs were illegal
   Whether or not you knew what kind of drugs they were, you knew that they weren’t legal. 
   
   

4. You had a usable quantity of the drugs

This means it can’t just be a trace or dusting of the drugs. It doesn’t have to be enough to get someone high, but it needs to be enough that you could reasonable ingest it. 

What Is the Punishment for Possessing a Controlled Substance?

When you are charged with possessing a controlled substance, it is vital to understand the penalties you could face if you are convicted. A San Diego drug possession lawyer can help you navigate the legal process and protect your rights.

In most cases, drug possession is a misdemeanor. That means you may face up to one year in county jail or a fine of $1,000.

However, those with prior convictions for certain serious felonies or a sex crime that puts them on the sex offender registration list may face felony penalties. These penalties include between sixteen months and three years in prison. And, you could get a lot more time for other, more serious drug-related offenses like possession for sale. A San Diego drug possession lawyer can be crucial in reducing these charges or penalties.

Deferred Entry of Judgment

If you are facing drug possession charges for the first time, you may be eligible for a deferred entry of judgment with the help of a San Diego drug possession lawyer. This option allows first-time offenses to be deferred so that you can avoid some of the consequences of a drug crime conviction and the ongoing consequences of a criminal record.

To be eligible, you must not have previous substance convictions or recent felonies, your crime must be nonviolent, you can’t have a recent deferred entry of judgment, and you can’t have ever failed to comply with probation or parole.

If you are eligible for deferred entry, you must plead guilty, and the court will set a later date to enter the guilty judgment. Then, in the meantime, you will be required to complete various steps like going through a drug treatment program and avoiding any other charges.

When your date arrives, you must have completed all the requirements. If you did not, you will be convicted and sentenced. Our San Diego drug possession lawyers can guide you through this process to help ensure you meet all necessary requirements.

California Proposition 36

In 2000, California passed Proposition 36. Prop 36 changes the way that nonviolent drug offenders are sentenced by diverting those that meet the requirements into drug treatment rather than sending them to jail. Some of these programs are residential, but the majority are outpatient programs. 

To know whether your offense might result in drug treatment rather than prison or jail time, your drug possession attorney can help you answer the following questions: 

1. Is your offense a “nonviolent drug possession offense” under Prop 6?
2. Do you have prior convictions that could disqualify you?
3. Were you armed when you committed the drug crime?
4. Were you convicted of other non-drug crimes?
5. Have you already been diverted using Prop 6 two other times?

Note that unlike Deferred Entry of Judgment, you don’t have to plead guilty to participate. You can plead not guilty, fight your charges, and still be diverted into treatment if you qualify, with the help of a San Diego drug possession lawyer.

What are Examples of a Controlled Substance?

Controlled substances include any number of both illegal and legal drugs that can have a potentially addictive or harmful effect on the user. These drugs are organized into schedules, based on their medical use, potential for abuse, or likelihood of dependence.

Facing possession of controlled substance charges? Here’s a small sample of the types of controlled substances you may face charges for:

• Marijuana 
• Heroin 
• Cocaine 
• Phencyclidine (PCP)
• Gamma hydroxybutyrate (GHB)
• Methamphetamine (Meth)
• Certain prescription drugs 

Offenses involving controlled substances can result in misdemeanor or felony charges. Your drug possession attorney can help you figure out the best path forward.

Possession of a Controlled Substance Expungement

If you’ve been charged with a controlled substance offense, you may already be thinking about whether this will be on your record forever. Expungement allows some people who have been convicted to get that conviction removed from their record – as though the offense never happened. 

Unfortunately, getting an expungement can be difficult, and if you are convicted, it can take a long time to be eligible for expungement. That’s why it’s especially important to get help from a San Diego drug possession attorney to try to avoid conviction in the first place. 

What are the Defenses to Possession of a Controlled Substance?

There are several defenses your legal team can mount to fight your drug charges. The right defense depends on the specific details of your case. Our criminal defense and San Diego drug possession attorneys can help you chart the best path forward. 

Lack of Possession

When you are charged with possessing a controlled substance, one of the first steps to proving your case is to establish that there were drugs in your possession. This is a critical element of the prosecution’s case, and your defense strategy will often revolve around challenging the evidence. A San Diego drug possession lawyer can help you assess the facts of your case, including whether there is enough evidence to prove that you had control over the drugs in question.

Your attorney may examine whether the drugs were legally discovered, whether there was an unlawful search, or if there is any ambiguity about whether the substances truly belonged to you. Additionally, there may be other defenses available, such as challenging the chain of custody or questioning the accuracy of the drug tests. With the expertise of a skilled San Diego drug possession lawyer, you can develop a defense strategy that aims to refute the charges or reduce the potential consequences.

Lack of Knowledge: Presence

You may have borrowed a jacket or bag from a friend, only to find drugs you didn’t know about. In situations like this, if you didn’t have knowledge of the presence of drugs, it can serve as a strong defense in your case. A San Diego drug possession lawyer can help you argue that you did not possess the drugs knowingly, which is a key element in drug possession charges.

If you were unaware of the drugs in the item you borrowed, your attorney can work to prove that you did not have the intent or control over the drugs, making it difficult for the prosecution to prove possession. By presenting this defense, your lawyer can help you challenge the charges and seek a favorable outcome.

Lack of Knowledge: Character

You may have been aware of some pills or a white substance in a bag or on your person. However, you may not have been aware that those were drugs. You may have thought they were some other substance, such as flour or sugar. If you didn’t know you were carrying controlled substances, your San Diego drug possession lawyer can use this lack of knowledge to your advantage in the courtroom.

A lack of awareness or intent to possess illegal substances is a crucial defense, as it can challenge the prosecution’s case that you knowingly had the drugs in your possession. Your attorney can help demonstrate that you had no idea the substances were controlled drugs, which could result in the charges being reduced or dismissed.

Substance Was Not a Narcotic Substance

In some cases, you may have been charged with a drug crime, but the suspected drugs were not actually an illicit substance. For example, you may have dried herbs in a bag you had collected, only for the police to mistakenly identify them as marijuana when you are pulled over.

If this is the case, a San Diego drug possession lawyer can help you argue that the substance in question was not illegal, and thus, the charges against you should be dismissed.

Your attorney can work to challenge the evidence, whether it’s through a request for chemical testing or by questioning the accuracy of the police’s identification. If the substance is proven not to be a controlled drug, your lawyer can ensure that the charges are dropped and your case is resolved favorably.

Not a Usable Amount

If you had drugs on your person but they were not a usable amount, you may have grounds for a defense. Trace amounts of a drug or residue are generally insufficient to sustain a drug possession conviction.

A San Diego drug possession lawyer can help you argue that the amount of the substance found was so small that it does not meet the legal definition of possession, which typically requires a certain quantity for prosecution.

Your attorney can use this defense to challenge the evidence and push for the charges to be reduced or dismissed, as possessing only trace amounts or residue often doesn’t support the intent to use or distribute the drug.

Valid Prescription

Many controlled substances do have medicinal uses. However, if you could not produce a prescription at the time of your arrest, you may have been arrested and taken to jail anyway.

In these cases, it’s important to speak to your San Diego drug possession lawyer about presenting your valid prescription to demonstrate that you were not carrying a controlled substance illegally.

Your attorney can help ensure that your prescription is properly recognized as a defense, which could lead to the charges being dropped or reduced. With the proper documentation, your lawyer can prove that you were legally using the substance for medical purposes, and therefore, should not be subject to criminal charges.

Illegal Search and Seizure

When dealing with the police, you have certain rights that should always be respected. Your Fourth Amendment right protects you from illegal search and seizure, which means that the police must have probable cause to search you or your vehicle. If the police officer has no reason to search you, they cannot simply choose to search you without grounds.

Miranda Violation

If you have seen a crime thriller or courtroom drama, you may already know your right to remain silent. However, you may not know that if you were not read these rights, any evidence gathered by the police may not be used against you. Talk to your attorney about anything you said following the Miranda violation and what could be admissible in court.

False Accusation(s)

Sometimes, you may have been falsely reported as having drugs on your person. This could stem from someone who wanted to damage your reputation, or they may have simply been mistaken. If you believe that you have been falsely accused of possessing a controlled substance, it’s crucial to speak to your San Diego drug possession lawyer.

Your attorney can investigate the circumstances surrounding the accusation and gather evidence to prove your innocence. Whether the accusation was made out of malice or a misunderstanding, your lawyer can work to clear your name and protect you from the legal consequences of a wrongful drug possession charge.

Mere Presence is Insufficient

You may have been at a house party that went wrong and the police showed up. At the party, someone else may have had drugs on them or nearby on a table. Your drug possession attorney may be able to defend you by asserting that mere presence of drugs that are not in your possession is insufficient. 

That means that, just because the drugs were near you, does not mean you were engaged in criminal activity.

Factors That Differentiate Simple Possession from Possession with Intent

Being charged with possession with intent to sell can lead to much more severe penalties, potentially felony convictions far beyond a felony possession charge. But what separates simple possession from possession with intent to sell? Here’s what you need to know:

The Drug Amount

First, carrying a significant amount of a drug can lead to harsher charges. However, the amount required to take your case from simple possession to possession with intent to sell can vary depending on the drug. For example, one must have a significant amount of marijuana, while a much smaller amount of cocaine can lead to these charges. 

Drug Packaging

If the police find evidence that you were packing a large amount of drugs into smaller quantities, this may indicate to the police that you intend to sell rather than use these drugs. Likewise, any paraphernalia that seems to be used to distribute drugs can also lead you to more severe charges. A San Diego drug possession lawyer can help you address these allegations and work to reduce the charges.

Absence/Presence of Drug Paraphernalia

Signs that you intend to use the drug yourself can impact your case and the charges you face. For example, the absence of certain paraphernalia may indicate that you do not intend to use that drug but instead intend to sell it.

Penalties for Drug Possession with Intent to Distribute/Sell

HS 11351 criminalizes possession of controlled substances with the intent to sell. Violating this law can result in serious consequences, including between two and four years in jail and up to $10,000 in fines. If you are found guilty of possessing drugs with the intent to sell, the penalties can be severe, significantly affecting your future. A San Diego drug possession lawyer can help you navigate the complexities of this charge, potentially reducing the penalties or finding alternative solutions.

Additionally, you can receive even longer prison sentences if you are convicted of related crimes, such as transporting drugs to sell or distributing controlled substances. The prosecution will often try to build a case around the idea that you were involved in drug trafficking, which could lead to more severe charges and lengthier sentences. With the guidance of our experienced San Diego drug possession lawyers, you can explore every legal avenue to defend against these charges and minimize the impact on your life.

Aggravating Factors

Worse still, your drug possession penalties may be impacted by aggravating factors. These factors can lead to harsher penalties because of specific details of your criminal offense. 

For example, you may face harsher penalties if you also own a deadly weapon at the time of the offense. Likewise, gang involvement can impact your case and worsen your penalties. 

Under the Influence of a Controlled Substance – HS 11550

HS 11350 and 11377 both refer to criminal charges of possession. But what happens if you are charged with being under the influence of a controlled substance? You can often be charged with a misdemeanor offense if a police officer determines you are under the influence of methamphetamine or other controlled substances such as GHB or PCP.

While this charge is typically a misdemeanor, remember that you may be eligible for a drug diversion program instead. For first-time offenders, you may have an opportunity to seek education and treatment, avoiding criminal charges.