Drug Possession HS 11350 & HS 11377

Don’t fight your drug possession HS 11350 & HS 11377 charges alone. Our 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. 

  1. You knew about the presence of the drugs

You knew that the drugs were there in your purse, pocket, etc. 

  1. You knew the drugs were illegal

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

  1. 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. 

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. 

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. 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 go through a drug treatment program and avoid any other charges. 

When your date arrives, you must have completed all the requirements. If you did not, you will be convicted and sentenced. 

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 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 Judgement, 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.

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:

Offenses involving controlled substances can result in misdemeanor or felony charges. Your 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 an 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 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 prove that there were drugs in your possession. Your attorney can help you determine whether the facts of your case will fit with this defense. 

Lack of Knowledge: Presence

You may have borrowed a jacket or bag from a friend, only to find drugs you didn’t know about. If you didn’t know about the presence of drugs, your attorney can use this to defend your case.

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 did not know you were carrying controlled substances, your attorney can use this to your advantage in the courtroom.

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. However, when you are pulled over, the police may have mistaken those for marijuana. 

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 insufficient to sustain a drug possession conviction. 

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, speak to your attorney about showing your valid prescription to show that you were not carrying a controlled substance illegally.

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 may come from someone who wanted to damage your reputation, or they may have simply been mistaken. Talk to your attorney if you believe that you have been falsely accused of possessing a controlled substance.

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 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 to distribute drugs can also lead you to more severe 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 between two and four years in jail and up to $10,000 in fines. 

You can receive even longer prison times if you are convicted of related crimes like transporting drugs to sell.

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

Connect with a Criminal Defense Lawyer in San Diego

If you are accused of drug possession in California, you may face severe penalties if convicted. Under California HS 11350 and HS 11377, you may face consequences ranging from a treatment program to years in prison.
Our attorneys at Elite Criminal Defense take the guesswork out of your case. We can offer tools and resources to our clients that can help you evaluate the penalties you may face and determine your best defense strategy. When you are ready to speak with an attorney, call 619-642-2310 or complete our online contact form for a consultation.

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