Attorney Diana Aizman Providing Criminal Defense Analysis
Under Business & Professions Code 4060, you may be in legal possession of a controlled substance so long as it was prescribed by a physician, veterinarian or naturopathic doctor under certain circumstances. Of course, there are controlled substances such as cocaine, PCP, LSD and other drugs that are considered to have no medical value and have a high potential for abuse are never prescribed to the general public. This code section also prohibits possession if you do not have a medical or pharmacy license or other particular certification allowing you to dispense narcotic medications.
In order to be convicted under 4060 BP, the DA must prove each element of this offense. These consist of the following:
- You possessed or exercised control1over a controlled substance
- You were aware of the drug’s presence2
- You were aware of the nature of the drug as a controlled substance
- There was a sufficient quantity3 of the drug that could be used, and
- You did not have valid prescription4 for the drug that was for your use only
1. Temporary Possession of the Drug
If you possessed the drug only for the purpose of turning it over to law enforcement or to dispose of it, then you have a valid defense. This does not apply if police show up at your apartment or home and you are caught trying to flush it down the toilet or were scattering it in the backyard.
2. Lack of Knowledge
If you can show that the jacket, purse or luggage of yours was out of your control or possession and in someone else’s possession for a time, then you might be able to convince the trier of fact that you had no knowledge of or were unaware the drug found in it was in your possession.
Also, identifying a drug like oxycodone, hydrocodone or a Quaalude may not be possible to a layperson unless it is clearly marked as such. The DA might still be able to demonstrate knowledge if you have a prior record for possession or sale of such drugs or if you were fleeing police or refused drug testing.
3. Lack of Possession
You may not have been in possession of the drug if someone else had control or access to the area where it was found. You may also have abandoned the drug days earlier but someone identified you as having had possession at some point. If you are arrested, you can argue you lacked possession or control of the drug on the day you were arrested.
4. Illegal Search and Seizure
Police overstep their authority or the law at times when arresting and/or searching persons they suspect of having committed a crime. You must be legally detained and only subject to a limited search under certain circumstances. If you are stopped for a traffic violation, your car may not be searched unless officers have probable cause to believe you are carrying controlled substances in your car.
If you are validly arrested, you can be searched incident to your arrest but only of your person and the immediate area. Otherwise, your car, home or business may not be searched absent a search warrant that is supported by an affidavit indicating probable cause. Search warrants limit the extent, time and scope of the search. If officers are looking for financial documents, for example, rummaging through your laundry or even your sock drawer likely exceeds the scope of the warrant. If the officer who drafted the affidavit and signed it fabricated facts to obtain the warrant, any evidence seized will be deemed inadmissible.
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Misdemeanor or Felony
A violation of Business and Professions Code 4060 is a misdemeanor carrying up to one year in county jail and/or a fine up to $1,000.
It is a felony, however, if you have a criminal history of violent felonies or sex offenses against a minor 14 years of age or younger, or are a registered sex offender. In these cases, you face 16 months, 2 or 3 years in state prison.
Drug diversion or deferred entry of judgment is possible for certain drug possession crimes if you are deemed eligible under Penal Code 1000 and/or Proposition 36. You are not eligible if you possessed the drugs for sale or were engaged in a violent act accompanying the offense. In other words, you possessed the controlled substances for your own personal use and you were not involved in any sexual or violent behavior. Other criteria include:
- No prior drug offenses
- No record of probation or parole violations
- You have not participated in a drug diversion program within 5 years of the subject or current offense
- You have no prior felony convictions within 5 years of the subject or current offense
Under PC 1000, you will enter a plea of guilty but the judge will defer imposition of sentence and all other proceedings for at least 18 months to 3 years while you participate in and complete an approved drug treatment program of at least 20 hours. During the course of your treatment and deferred period, you will be periodically assessed and a progress report submitted to the court. If you are successful in completing the treatment and commit no further offenses and pass any drug test, the court will dismiss the charges.
Proposition 36 is also a deferred judgment alternative available for those with violent or otherwise serious felony convictions though its effect can be dissimilar from PC 1000. You still, however, must not have met any of the non-qualifying criteria listed above.
You still must plead guilty to the underlying charge and the court will defer further proceedings except that you are under formal probation and any conditions that it entails. Even if you satisfy all conditions, the court may still decide to not dismiss the charges though you will likely not spend any time in jail or prison.
Another program is participation in any of California’s over 200 drug courts. Your eligibility is similar to that for diversion and deferred entry of judgment. The counties where the drug courts operate may have their own unique programs for adults or those adults under 25, for example, where specific programs are delineated for your participation and where you are required to spend a certain time participating in these programs. This may include intensive counseling, attendance in school, maintaining employment, meeting with your probation officer on a regular basis and submitting to random drug testing. Upon completion, your charges are dismissed.
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Post-conviction relief by way of an expungement is available in most cases for a conviction under Business and Professions Code 4060. A felony conviction under this section, however, does result in state prison time, which disqualifies you for expungement.
As indicated herein, if you were convicted of a misdemeanor under Business and Professions Code 4060, you are eligible to have it expunged. If you are convicted of a felony, though, your attorney may be able to convince the court to sentence you to county jail if possible in the event you are sentenced to be incarcerated. Otherwise, your felony is not eligible for expungement though there are post-conviction relief remedies that you may pursue.
This code section bars anyone from obtaining prescription drugs by forging or altering a prescription or signing a physician’s name. It is a wobbler offense. If convicted of a misdemeanor, you face up to a year in county jail and/or a fine up to $1000. If a felony, it carries 16 months, 2 or 3 years in jail and/or a fine up to $10,000.
It is illegal to obtain narcotics or a controlled substance by fraud, misrepresentation or deceit. An example is pretending to be a health care provider and calling a pharmacy to issue a prescription. This is also the “doctor shopping” code section whereby an individual attempts to obtain multiple prescriptions from different physicians for the same drug.
It is also a wobbler offense. As a misdemeanor it is punishable by up to one year in county jail and/or a fine up to $1000. As a felony, you face 16 months, 2 or 3 years in jail and/or a fine up to $10,000.
Health and Safety Code 11350
This code section is very similar to 4060 BP in that it prohibits possession of a controlled substance including those without a valid prescription. Possession of narcotics without a valid prescription is a misdemeanor. The only difference between the sections is that 4060 BP addresses prescription medications only.
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- You possess a certain item or drug when it is on your person or attached to you such as in a purse, backpack or luggage that you are carrying. You are in constructive possession or have control over the object or drug if the purse, backpack or luggage was yours though it was not in your immediate presence or attached to you. If the drug was found during a valid search, it must have been in an area under your exclusive control such as your car, file cabinet or dresser drawer. If you ingested the drug and exhibit or show signs that you are under its influence, you can be convicted of having possessed it illegally so long as you had no valid prescription. [↩]
- Police may find a drug on your person or in your possession but the DA still has to prove you were aware of its presence and knew or should have known that it was a controlled substance. If the drug was found in a jacket you loaned to someone or a girlfriend borrowed your coat or purse and drugs were found, you can argue you had no knowledge of its presence therein.So far as it being a controlled substance, you might have reasonably believed it was an over-the-counter medication if you told police you were given it by someone unless it is a powdery substance indicating it is likely cocaine or heroin. Having a prior record of possession of this or even another controlled substance will make it more likely you were aware of the nature of the drug. [↩]
- As with any illegal drug, you must have possessed at least enough of it that it could be used as a drug even if it may not be enough to produce a narcotic effect. For instance, a prescribed drug like hydrocodone or oxycodone that is identified as such must be in a sufficient amount. Traces or residue of it is insufficient unless you had ingested it and were exhibiting signs of being under its influence. [↩]
- You are immune from prosecution under Business and Professions Code 4060 if you possessed a valid prescription for the controlled substance. If none is found or the DA shows that the prescription you have was forged or altered, then you do face prosecution. If the bottle or container that holds the drugs had more than what was prescribed to you, then you might be found criminally liable for illegal possession as well. [↩]