Health and Safety Code 11350(a) makes possession of a controlled substance illegal. The offense is typically a misdemeanor punishable by up to a year in county jail. A skilled attorney can also negotiate for alternative sentencing like Deferred Entry of Judgment, Proposition 36, or Drug Court to ensure you benefit from drug rehabilitation instead of spending time behind bars. If the police arrest and charge you for a drug crime in Pasadena, CA, we encourage you to call the Michele Ferroni Pasadena Criminal Attorney Law Firm. Our years of combined experience allow us to skillfully analyze each case and give you a clear perspective and understanding of your case.
The state prosecutes drug crimes aggressively, and your freedom and welfare could be at stake. Depending on the facts of your case, the prosecution can even impose felony charges punishable by up to 3 years in state prison. We will ensure you understand your legal rights and create a defense strategy to help protect your future.
Possession of a Controlled Substance (HS 11350) Defined
HS 11350 criminalizes the "possession of a controlled substance." Generally, this means that you have an illegal drug or narcotic in your immediate possession or a location under your control. The only exception to the statute is if you have a valid prescription.
To obtain a conviction, the prosecution must prove the following elements are factual beyond a reasonable doubt:
- You possessed a drug or narcotic listed as a controlled substance under the Controlled Substances Act
- You did not have a valid prescription
- You knew about the presence of the substance and its nature
- You only possessed a usable amount of the controlled substance
Let us have an in-depth look at some of the terms and phrases used to describe HS 11350:
Controlled substances are drugs, narcotics, or precursor chemicals whose possession, use, importation, manufacture, and distribution are regulated by the state or federal laws under the Controlled Substances Act (CSA). These substances are categorized into schedules depending on their medical use and potential for abuse.
A few examples of controlled substances include:
- Schedule I — Heroin, peyote, Ecstasy, lysergic acid diethylamide(LSD)
- Schedule II — Cocaine, Methamphetamine, Morphine, Methadone
- Schedule III — Ketamine, anabolic steroids, Buprenorphine (Suboxone)
- Schedule IV — Diazepam (Valium), temazepam (Restoril), Clonazepam (Klonopin)
- Schedule V — Cough preparations with codeine, Ezogabine
There are three types of possession. You can be in the actual possession of a drug or have the illegal drug through another person or an area in your control. Essentially, you do not need to hold or touch the controlled substance.
The prosecution can obtain a conviction if they can prove that you were in actual, constructive, or joint possession of a controlled substance.
- Actual possession — When the controlled substance is in your immediate or direct physical control
- Constructive possession — Having the controlled substance in an area or location under your control, e.g., your home, bag, or locker.
- Joint possession — When the controlled substance is in the actual or constructive possession of the defendant and one or more people
The prosecution does not have a case against you if you did not know of the presence of the controlled substance. Also, the court will likely drop your case if you had no idea that a specific substance was a drug, precursor chemical, or narcotic regulated under the CSA.
Generally, it is enough for the prosecutor to prove that you knew the substance was an illicit drug. You do not need to know which specific drug is in your possession.
You can only face charges under HS 11350 if the controlled substance in your possession is of a usable amount. "Usable amount" implies that the authorities found enough substance for one person to use, although the drug's quantity or strength does not need to be enough to cause intoxication.
If the quantity is higher than what one person can reasonably consume, or the police find paraphernalia like weighing scales and measuring instruments, you are likely to face charges under Health & Safety Code 11351. Possession of a controlled substance for sale is a felony. The crime is punishable by up to 4 years imprisonment, although the court can impose sentence enhancements if a case has aggravating factors.
Possessing a controlled substance's analog is as unlawful as having a drug listed under the CSA. An analog is a substance pretty similar to a controlled substance, although it has some slight differences.
An analog can be described as:
- A chemical with an almost similar structure as a specific controlled substance, or
- A chemical that has a nearly identical effect on the central nervous system as a controlled substance
Penalties for Possession of a Controlled Substance (HS 11350)
If the prosecution can prove that you only possessed a usable amount of a controlled substance or its analog, you will face misdemeanor charges under HS 11350.
The penalty for the crime is as follows:
- A county jail sentence for up to 1 year
- A fine not exceeding $1,000
Sometimes, violating HS 11350 can attract felony charges. This often happens when the accused has a sex crime or any serious felony conviction on their record.
An HS 11350 felony conviction is punishable by:
- Up to three years imprisonment in county jail
Other penalties for the crime include:
- Negative Immigration Consequences — Any drug crime is a removable offense, whether charged as a misdemeanor or a felony. If you are a non-citizen, a conviction can result in deportation or an inadmissible status.
- Stripping of Your Gun Rights — An HS 11350 conviction will negatively impact your gun rights if charged as a felony.
HS 11350 Sentencing Alternatives
Possession of a controlled substance is a non-violent offense. With proper legal representation, you could benefit from a sentencing alternative designed to ensure you are rehabilitated before reentering society.
The three common drug possession sentencing alternatives include:
Proposition 36 is a drug diversion program that allows a defendant to undergo a court-approved drug rehabilitation program instead of spending time in jail. Upon completing the program, the court dismisses all charges, allowing the accused to safely and productively rejoin society.
Prop 36 has strict eligibility criteria. The most basic requirements are that the accused must be a first-time or second-time offender charged with a controlled substance's non-violent "possession." This disqualifies anyone accused of selling, transporting, importing, manufacturing, or furnishing a controlled substance.
Other Prop 36 disqualifying factors include:
- Two or more past proposition 36 alternative sentencing
- A simultaneous conviction for a non-drug-related offense
- Possession of a dangerous weapon during an incident
- A strike conviction within the past five years
Alternative sentencing under Prop 36 can be beneficial if a defendant completes drug rehabilitation successfully. After the program, the court will dismiss the case, and you will maintain a clean record as though you were never arrested or charged with drug possession.
Pretrial Diversion — Penal Code 1000
If you do not qualify for alternative sentencing under Prop 36, you could be eligible for Pretrial Diversion under Penal Code 1000. The statute allows low-level drug offenders to undergo mandatory drug rehabilitation and avoid jail time. The primary qualifications are that the crime must be for drug possession for personal use, and you must show a likelihood of benefiting from drug rehabilitation.
Additionally, the drug possession crime must be a non-violent one, and you must not have a prior drug crime or felony conviction that is less than five years old. Pretrial diversion rehabilitation typically runs for 12 to 18 months. The court will dismiss the charges and order to have your records sealed upon completing the program.
California Drug Court
Another great alternative sentencing option is the California Drug Court. Again, the alternative allows defendants to undergo drug treatment without going through the traditional criminal justice system. Furthermore, the current charge must be for the non-violent possession of a controlled substance for recreational use.
A treatment program under the California drug court has a pretty loose structure compared to other alternative sentencing options for drug possession crimes. The program will also involve therapy, counseling, and random drug tests. The court closely monitors the defendant to ensure complete adherence to the set terms and conditions throughout treatment. The option encourages ongoing dialogue between the accused, the judge, and the prosecutor to provide effective rehabilitation.
Generally, California drug courts employ a collaborative approach to justice. Depending on a defendant's needs, a program could involve serving some time in prison if this is perceived to help reduce the risk of recidivism. However, the court will still dismiss the case if you complete the program successfully.
If you do not qualify for alternative sentencing, all is not lost. It is also possible for a skilled drug attorney to have your record expunged following a conviction. Under Penal Code 1203.4, record expungement frees the accused from all penalties and disabilities allied with a conviction.
Best Defenses to Fight HS 11350 Charges
Even with the legalization of marijuana in 2018, the war on drugs is tougher today than ever before. It is crucial to have a competent drug crime defense attorney in your corner, irrespective of the controlled substance you allegedly possessed.
Your attorney will consider all aspects of your case right from the arrest to help determine whether the authorities violated your rights. The expert will file motions to dismiss any illicitly obtained evidence if necessary. Other aspects a lawyer will consider before devising a defense strategy include the type of evidence against you and the circumstances leading to your arrest.
Here are four effective defenses to fight HS 11350 charges:
Medical Exemption (You Have a Valid Prescription)
The easiest way to have the courts drop your charges is to prove that even though you had a controlled substance, you also have a valid prescription from a licensed practitioner like a physician, naturopathic doctor, or veterinarian. Providing your written prescription as evidence is often enough to force a judge to dismiss the case.
Your Rights Were Violated
Specific rules and regulations define the acceptable protocols the police must follow during the search, arrest, and questioning phases. If the authorities violate your rights during these processes, any evidence discovered cannot be used in court.
Police officers can violate your rights through:
- A traffic stop with no probable cause
- Unlawful search and seizure
- Failure to give the Miranda warning during the arrest
- Denying you the right to an attorney during questioning
You need a competent attorney to argue the police violated your rights. The court trusts and respects law enforcement officers, and it is likely to be your word against their word. Your lawyer can help gather evidence and facts that help to raise doubt against the conduct of the arresting or interrogating police.
The court will not proceed with a case if your attorney can raise doubts about the facts presented by the prosecution. For instance, it could be that you had a white substance in your possession, but it was not cocaine. If the forensic lab cannot confirm the identity of the substance, there is no case. Also, the court will drop your charges if the police misplaced or tainted the evidence before it got to the evidence locker.
It could also be that the drugs recovered from your shared apartment were not yours, and somebody hid them under your mattress during a party. It is up to the prosecution to prove that the drugs belong to you based on evidence like fingerprints on the wrapping paper. If the evidence is tainted because of improper handling, the court will again have to dismiss your case.
Typically, it is not easy to achieve the intended outcome, especially when you do not have concrete evidence that contradicts the facts presented by the prosecution. However, a competent attorney will constantly pressure the prosecution to prove beyond a reasonable doubt that they recovered controlled substances in your actual, constructive, or joint possession.
Lack of Knowledge
One of the critical elements the prosecution must prove is that you "knew" about the presence and nature of a controlled substance. It is necessary to show that you intentionally and knowingly possessed an illicit drug, chemical or narcotic; you knew exactly what it was and what it could do if ingested.
It could be that someone left a bag with heroin in your car's back seat. You had no idea about its presence and only found out about the bag when the police pulled you over for running a red light. It is possible to weaken the prosecution's case by presenting facts about your character or clean criminal history and using them to strengthen your "lack of knowledge" argument.
Your attorney can also claim that the police fabricated evidence to justify an arrest. It could be that the officers are lying about pulling you over for probable cause. It could also be that the authorities planted the "evidence" to justify why they needed a search warrant for your home.
Any claims of a law enforcement officer falsifying evidence will often lead to thorough investigations into the conduct and history of the expert. Any past inappropriate acts can raise doubt about your charges, forcing the court to dismiss your case.
One of the key reasons to enlist an attorney is that the expert can weigh the prosecution's case. It is not beneficial to enter a guilty plea or accept a plea deal prematurely if it is weak. It is up to the state to table evidence that proves you violated HS 11350 beyond a reasonable doubt.
Therefore, if the prosecution does not have all facts right, your attorney will argue a lack of sufficient evidence. The court will drop your case if the prosecutor cannot satisfy all the elements of HS 11350.
It is common for drug possession charges to tag along with other charges that potentially attract higher penalties. For instance, the police can pull you over for a broken light. If they find controlled substances in your car and establish you are intoxicated, you could face charges under HS 11350 and under Vehicle Code 23152(a) or Vehicle Code 23152(b). Because drug crime charges are complex and confusing, do not underestimate the importance of working with a skilled attorney.
Let us analyze two related offenses that can be charged alongside or instead of possession of a controlled substance:
HS 11351 — Possession for Sale of a Controlled Substance
Under HS 11351, it is illegal to possess a controlled substance with the intent to sell or distribute. The offense is a felony that attracts steeper penalties than HS 11350.
The prosecution will need to prove the following elements:
- You possessed a controlled substance
- You know about the presence of the substance and its nature
- You possessed the controlled substance with the intent to sell it
The prosecution can provide sufficient proof of your intent to sell by showing any of the following facts:
- You possessed a large quantity of a controlled substance (not a usable amount)
- You possessed paraphernalia like packaging baggies, multiple bindles, or weighing scales
- You had a considerably high amount of cash in small denominations
- There was a high traffic of people visiting your place and leaving in a few minutes
Violating HS 11351 is a felony punishable by:
- Imprisonment for 2, 3, or 4 years
- A fine not exceeding $20,000
Also, possession of a controlled substance for sale is subject to sentence enhancement if a judge unveils aggravating factors. For instance, if the drug in question is cocaine, you risk spending 3, 4, or 5 years behind bars.
The sentence enhancement to expect if the drug is cocaine, a cocaine base, or heroin is as follows:
- An additional three years if the drug is more than 1 kilogram (kg)
- An extra five years if the controlled substance exceeds 4kg
- Five extra years behind bars if the drug is more than 10kg
- Fifteen additional years if the drug is over 20kg
- A further twenty years if the weight of the drugs exceeds 40kg
- Twenty-five extra years in jail if the drugs weigh over 80kg
HS 11550 — Under the Influence of a Controlled Substance
Another offense related to HS 11350 is HS 11550. Under the statute, it is illegal to be under the influence of a controlled substance if you do not have a valid prescription. The offense is a misdemeanor, and defendants can benefit from alternative sentencing options like Prop 36 and Penal Code 1000.
In order to convict you of being under the influence of a controlled substance, the prosecution must prove that the following elements are factual beyond a reasonable doubt:
- You willfully used/ consumed a controlled substance
- You were willfully under the influence of the illicit drug
The prosecution can use three main strategies to prove you violated HS 11550. They include:
- Arresting officer's testimony — The officer could claim that you had symptoms like pinpoint pupils, tremors, extreme lethargy, or chemical odor that suggested you were intoxicated.
- Chemical test results — You took a blood or urine test that came out positive, showing you had a controlled substance in your system.
- Drug recognition expert's (DRE) testimony — The testimony of a DRE officer after conducting a specialized 12-step drug impairment test.
If convicted under HS 11550, the punishment will include:
- Incarceration for up to 1 year in county jail
Find a Drug Crimes Attorney Near Me
Have you been arrested or charged for possessing a controlled substance in Pasadena, CA?
Let us help you fight the charges and possibly have them dropped or reduced. At Michele Ferroni Pasadena Criminal Attorney Law Firm, we understand the adverse effects of a drug crime conviction and can give you maximum chances of achieving the most favorable outcome. We will conduct investigations, study the facts of your case, explain your legal options and create the most effective defense strategy. Contact us today at 626-628-05640 for more information about fighting drug crime charges.