Possession with the Intent to Sell
Possession of an illegal drug is already a serious charge in California. But it’s a lot more serious if you’re charged with possession with the intent to sell under California Health and Safety Code 11351.
This is a charge that, if it turns into a conviction, could land you behind bars and with hefty fines to pay. But it doesn’t have to turn into a conviction.
That’s because Elite Criminal Defense is here to help. If you have been charged with possession with the intent to sell, reach out to learn more about your legal options and the best path forward.
Table of Contents
- Definition of Possession for Sale of Narcotics HS 1135
- What Does a Prosecutor Need to Prove Intent to Sell?
- What Does It Mean to Possess a Controlled Substance for Sale?
- How Does This Differ from Possession for Personal Use?
- What Are the Best Defenses to HS 11351?
- What Are the Penalties for Possession for Sale?
- Speak with a Criminal Defense Attorney
Definition of Possession for Sale of Narcotics HS 1135
Possession for sale of narcotics means you possessed an amount of a controlled substance, or multiple controlled substances, and had the intent to sell them.
Controlled substances, in this case, include various illegal drugs like heroin, cocaine, and LSD. But illegal drugs aren’t the only substances included here — you can also be charged with possession of various prescription medications with the intent to sell.
What Does a Prosecutor Need to Prove Intent to Sell?
You can be charged with possession with the intent to sell without definitive proof, but in order for the prosecution to actually convict you, they’ll need to prove that you possessed a controlled substance and intended to sell it.
How do they do that, exactly?
First, they need to show that you possessed the controlled substance in question. Then, they need to prove your intent to sell.
They can’t read your mind, so they often use other indicators to demonstrate that you intended to sell the controlled substance. Examples include the following:
- People frequently coming to your home and only staying for a short time
- Large amounts of the controlled substance in question
- Tools commonly used in the sale of drugs, such as scales and small plastic bags
What Does It Mean to Possess a Controlled Substance for Sale?
If you’re charged with possessing an illegal substance with the intent to sell, it’s crucial to understand your situation fully. Otherwise, you could make costly errors that harm your future.
Speak to an attorney to break down your specific case and develop a strategy to avoid conviction. In the meantime, let’s dive into what it means to possess a controlled substance for sale in legal terms.
Possession
Possession of an illegal substance is the first, perhaps most important part of this charge. But California law defines possession somewhat differently than most average individuals might.
In legal terms, possession of a drug refers to control of that drug. You can have control of a drug without having it directly on your person or in your vehicle.
The law breaks possession down into three key types:
- Actual possession. “Actual possession” of a controlled substance means you have direct and immediate control over the substance. This usually implies that the substance is on your person, such as in your pocket, in a bag you’re carrying, or in your hand. The key aspect is that you have immediate control over the substance and can access it without needing to go through another person or take additional steps.
- Constructive possession. “Constructive possession” of a controlled substance means you may not have the substance physically on your person, but you have control over its location and the ability to access it. Essentially, you have the power and intent to control the substance, even if it’s not in your immediate physical possession.
- Joint possession. “Joint possession” of a controlled substance refers to a situation where two or more individuals share control over the location and access to a controlled substance. In simpler terms, it means that more than one person has the ability and intent to control the drug.
Knowledge
Possession is only the first part of possessing a controlled substance for sale. You must also know that you possess the controlled substance. Otherwise, it’s not exactly your fault.
For example, you may have borrowed a friend’s car and gotten pulled over. Suddenly, you’re under arrest after police found a stash of cocaine in the glove compartment. You had no knowledge that you were in possession of the drug.
How Does This Differ from Possession
for Personal Use?
When you are facing charges of possession with intent to sell, you may be unsure of how these charges differ from a less severe charge: simple possession, or possession for personal use.
Both charges involve the personal possession of controlled substances without a legal right to do so, such as a prescription. But in what key ways do these charges differ?
Let’s take a look at the difference between possession and possession with the intent to sell in California.
The Quantity of the Controlled Substance
Often, the amount of a drug you have in your possession determines whether you are charged with simple possession or possession with the intent to sell in California.
A small amount of a drug suggests you possess the drug for personal use, and a large amount suggests you possess it with the intent to sell it.
The Presence or Absence of Drug Paraphernalia
Drug paraphernalia like pipes, rolling papers, and similar items can indicate that you intended to personally use the drugs you had in your possession.
But other drug paraphernalia, like scales and plastic bags, may suggest that you intended to sell the drugs you allegedly had in your possession.
In other words, the presence of drug paraphernalia can make a big difference in whether you’re charged with possession or possession with the intent to sell.
What Are the Best Defenses to HS 11351?
Once you have determined the severity of the criminal charges, including whether you are facing simple possession or possession with intent to sell, you can begin building a defense strategy
But where do you start?
Below are just a few samples of the defenses commonly used against charges like possession with the intent to sell, but your attorney can provide case-specific guidance for you.
Police Officer’s Failure to Follow Constitutional Procedures
Police officers have to adhere to particular protocols when they investigate and arrest you. If they violate those protocols, they may be violating your constitutional rights.
And a violation of your constitutional rights may be reason to dispute the possession with intent to sell charge you are now facing.
For example, your Fourth Amendment rights are meant to protect you from illegal search and seizure. Unfortunately, a police officer may have searched your car without reasonable cause to believe you were breaking the law.
In such a case, you may be able to argue that the charge against you shouldn’t stand as-is.
Momentary Possession
Maybe it’s true that you possessed the drugs in question at the time of your arrest, but you only had the drugs in your possession for a brief moment. It was just bad timing, and you never intended to sell them.
In fact, you might have been attempting to throw them away. Or you might have accidentally come into possession of the drugs. If you and your attorney can convince the court that this is the case, you may be able to beat this charge.
Lack of Control or Possession
A key part of many criminal offenses is the intent to do harm. However, you may not have had any intent to possess drugs, let alone the intent to sell them. You may have borrowed something from a friend that had drugs in it, for example.
Proving you did not intend to commit a crime is often a viable defense path. A trusted lawyer can help you understand whether this or any other defense is workable in your specific case.
Lack of Awareness of Knowledge
You may not have been aware of the drugs being in your presence in the first place. For example, you may have had a friend in your vehicle who brought the drugs into your vehicle or home.
Gathering evidence that you could not have been aware of the drugs may be vital for your case.
Valid Prescription
Many controlled substances often also have medicinal uses. While the substances can have addictive or potentially harmful properties, they may be one of the only treatment options available for certain conditions.
If a medical professional legally prescribed the drug to you, it’s not a crime for you to have it. And if you have the amount of the drug specified by your prescription, it’s likely to be difficult for the prosecution to prove that you intended to sell it.
Lack of Intent to Sell
In some cases, you may have had drugs in your possession because you intended to possess them for yourself, not for sale. While simple possession is still a criminal charge, it can come with less severe penalties than possession with the intent to sell.
Entrapment
What if you would never have possessed illegal drugs or intended to sell them if it weren’t for the manipulation of another person? And what if that person was an undercover police officer?
If that describes your situation, you may be a victim of entrapment. And that may lead to a viable defense against the charge of possession with the intent to sell you’re now facing.
Insufficient Evidence
In the United States, you have to be proven guilty. And that proof comes through evidence.
So, what if there isn’t actually all that much evidence against you? It probably means you shouldn’t be convicted.
An experienced criminal defense attorney can help you assess the evidence against you and even devise a strategy to attack the evidence.
What Are the Penalties for
Possession for Sale?
If you’re found guilty under California’s Health and Safety Code 11351 HS, you could get two to four years in county jail and possibly a fine up to $20,000. That’s the most basic set of penalties you could face.
In some cases, though, your attorney might be able to help you get probation and less time behind bars (one year).
Also, it’s important to note that a conviction under HS 11351 disqualifies you from drug diversion programs, which means you can’t choose treatment over jail time. And certain aggravating factors may worsen the potential penalties you face.
Aggravating Factors
The penalties for possession with intent to sell are already high. Unfortunately, certain aggravating factors can make the penalties you face worse.
For example, you may face worse penalties if the selling and distribution process is part of an organized crime group or gang. When arrested, you may also face harsher penalties if you have a gun or other deadly weapon.
If you are concerned that aggravating factors may impact your case, do not hesitate to reach out and discuss your case with a qualified attorney.
Drug Diversion
Drug diversion is a program that allows convicted drug offenders to engage in treatment programs instead of spending time in jail or prison. Generally, however, California courts do not allow people convicted of sales-related drug crimes to engage in drug diversion.
In other words, if you’re convicted of possession with the intent to sell, you won’t be eligible for drug diversion.
However, your attorney may be able to fight to have your charge reduced to a simpler possession charge, which could make you eligible for drug diversion.
Possible Immigration Consequences
Immigrants face another potential penalty if they are convicted of possession of a controlled substance with the intent to sell: deportation.
For many immigrants in the United States, this may be an incredibly serious potential penalty. And that’s why it’s so important to speak with an experienced attorney about your legal options.
Speak with a Criminal
Defense Attorney
If you’re charged with possession with intent to sell under HS 11351, the stakes are high. You could face years in jail and other long-lasting consequences that could harm your future.
That’s where Elite Criminal Defense comes in. We understand the stress and worry you might be feeling after an arrest. We’re here to help you create a strong defense plan tailored to your specific case.Ready to talk to a lawyer? Reach out to us for a consultation. You can call us at 619-642-2310 or fill out our online contact form.
possession with intent to sell FAQ
There is no specific quantity that automatically proves intent to sell under California law. Instead, prosecutors rely on circumstantial factors such as:
- A large amount of the drug inconsistent with personal use
- Presence of scales, packaging materials, baggies, or large cash amounts
- Observed behavior indicating distribution activity, like frequent short visits to a single location.
These indicators help infer intent to sell, but there is no legal “magic number.”
Yes, you can be charged with possession with intent to sell prescription drugs—unless you have a valid prescription in your name. Even for prescription opioids like oxycodone or hydrocodone, possession without a lawful prescription is illegal and may be charged under HS §11351. A proper prescription can be a valid defense and may lead to dismissal.
Yes, you can be charged with possession with intent to sell even if no sale occurred. California law focuses on the intent to distribute, not actual sales. A completed transaction is not required for the charge—only the preparatory actions and intent need to be proven.
Evidence frequently used includes:
- Large drug quantities far beyond personal use
- Packaging items like baggies, digital scales
- Cash in multiple denominations
- Documentation such as pay-owe sheets
- Witness testimony of distribution behavior or admissions.
These indicators collectively help establish intent under HS §11351.
Yes, it is possible to expunge a conviction for possession with intent to sell under California Penal Code §1203.4, provided:
- It was a misdemeanor (which is rare for HS §11351 cases),
- You completed probation, paid all fees, and
- You are not currently facing new charges.
Felony convictions are generally not eligible unless reduced first.
Any person in constructive or actual possession of a controlled substance may be convicted under HS §11351 if the prosecution proves:
- They knew of the controlled substance,
- They possessed it in usable quantity, and
- They intended to sell it—even if someone else intended to distribute it.
This includes those who share control (like roommates) or manage property where drugs are stored.
Yes, possession with intent to sell is prosecuted as a felony under Health & Safety Code §11351. For non-marijuana drugs (like cocaine or heroin), penalties include 2–4 years in state prison, potential fines up to $20,000, and a permanent felony record. In contrast, possession of marijuana for sale may be charged as a misdemeanor under revised laws.
In California, three primary agencies are frequently involved in cases of possession with intent to sell:
- The California Department of Justice (DOJ) – Bureau of Investigation (BI): provides forensic and criminal investigative support in complex or high-level drug trafficking cases that span multiple jurisdictions.
- The San Diego County District Attorney’s Office: prosecutes felony drug cases locally, determining charges based on the amount and type of controlled substance and any evidence of sales intent.
- DEA-led Task Forces (e.g., NTF, FAST): the Narcotics Task Force (NTF) and the Field Area Support Team (FAST) assist with dismantling larger-scale drug networks, often coordinating with local law enforcement during raids or surveillance operations.
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