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- The drug has some currently accepted medical use with restrictions
- It has a high potential for abuse and severe psychological and physical dependence
Although it does have medical uses for animals, PCP (its scientific designation is phencyclidine) is a drug that is not prescribed for humans. Consequently, possession of PCP is always a criminal violation.
What is PCP?
PCP is used as an anesthetic by veterinarians. Its use for such purposes, or for anything medical in nature for humans, has never been approved since it was first developed in the 1940s.
PCP’s appeal is based on its hallucinogenic effect and as a stimulant and depressant. It is commonly mixed with other substances and ingested in the form of a powder, tablet or liquid. It can be inhaled or snorted, injected or smoked, especially when marijuana is laced with it.
PCP users report feelings of euphoria, power and extreme confidence. Its effects can last from a few hours to several days.
Users of PCP report hallucinations, feelings of extreme anxiety, paranoia, feelings of detachment and incoherency. Severe mood disorders also characterize use of the drug. High doses can lead to a drop in blood pressure and pulse rate, drooling, nausea and dizziness. Suicide has been reported among users as well.
It is possible, though unlikely, you could have a prescription for PCP. Otherwise, any possession of PCP is unlawful. Even if you have a prescription, its use is solely for an animal so if you ingest, inject to inhale it or sell or attempt to sell it, it is a criminal offense.
You possess a drug under the following circumstances or elements:
- It is on your person or under your control3
- You were aware of its presence and its nature4
- And the drug was of sufficient quantity to be effective5
A violation under Health & Safety Code 11377 is a “wobbler” offense, such that the DA has the option of charging you with either a misdemeanor or a felony. This determination rests largely on whether you have prior criminal convictions, especially regarding drug possession, sale or trafficking, and any aggravating circumstances pertaining to the circumstances of your arrest.
A misdemeanor conviction carries a county jail sentence of up to one year and a fine up to $1000 fine.
A felony conviction carries 16 months, 2 or 3 years in state prison and a fine up to $10,000.
Sale of a controlled substance is a serious criminal violation and a straight felony. Possession of a certain amount of the drug constitutes intent to sell unless you can convince a jury or judge that the drugs were for your personal use. It usually takes testimony from a drug expert who can tell a jury that despite the large quantity of drugs, it is not unreasonable to presume that they were solely for your own use.
However, if you are found with the accoutrements normally associated with selling drugs, such as baggies, a scale, customer lists or large amounts of cash found with you. Law enforcement officers may also report surveillance of your home where numerous people have been observed entering and exiting it at all hours.
Purchase for sale of PCP is generally charged after a sale is observed or is transacted with an undercover narcotics agent.
Violation of 11378.56 carries state prison time of 3, 4 or 5 years and a fine up to $10,000. Possession of at least one kilogram of PCP, however, enhances your sentence to where you face an additional prison time of 3 to 15 years.
You face an additional one year in state prison if you possess PCP for sale or purchase it for sale if such activity occurred within 1000 feet of the following facilities:
- Homeless shelter
- Detox facility
- Drug treatment center
Transporting and selling PCP are serious crimes. This code section actually punishes more than transporting, which means that you only need to carry it for any distance to be convicted of it. Violation of this section includes administering it to anyone directly who then ingests, injects or inhales the drug. If you merely give it away, you are in violation of this section.
Most convictions for sale of PCP originate with a sale to an undercover narcotics agent or observation of the sale by surveillance video or by police in close proximity.
Further, you can be convicted of transporting if you are with someone whom you are aware is in possession of the drug and you are driving them in your car to any destination7.
Conviction of this felony carries 3, 4 or 5 years in state prison and a fine up to $20,000.
There are aggravating factors under this code section that can substantially increase your state prison time for transporting, selling or administering PCP:
- You have a prior conviction for transportation or sale—a consecutive 3-year term for each prior felony conviction
- The person to whom you were selling, furnishing, giving or administering was:
- Has a prior violent felony conviction
- Was being treated for a mental condition, disorder or for addiction
If any of these factors are present, you face the maximum sentence or 5 years in state prison.
If you sold to, gave or administered the drug to a minor, or used a minor to transport or sell a controlled substance, you face conviction under 11353 HS8 and 11353.1 HS, which carries 3, 6 or 9 years in state prison.
There are 2 elements to being under the influence of PCP:
- You did not possess a valid prescription for PCP
- The drug impaired your mental or cognitive abilities or physical coordination in any detectable way
A peace officer might be able to detect your drug impairment by any of the observed effects of using the drug. This includes hallucinations, reported feelings of paranoia, euphoria, invulnerability, depressed pulse rate and incoherency. A blood or urine test will detect the drug in your blood.
A violation of this code section is a misdemeanor with possible county jail time of up to one year and/or a fine of no more than $1000.
No motorist can legally drive a motor vehicle if under the influence of a drug, legally prescribed or not. A trained peace officer such as a DRE9 can usually detect if a driver has been drinking or is under the influence of a controlled substance. You may be suspected of drug use if your behavior is erratic, you are hallucinating or become violent.
A violation of this section is a misdemeanor. However, you face felony DUID charges if:
- This is your 4th DUI conviction in 10 years
- You caused an accident with serious bodily injuries
- You caused an accident with fatal injuries
If you were driving with a passenger under the age of 14 while under the influence of PCP, accompanied by some aggravating factor such as speeding, or you were appreciably impaired or caused an accident, you could face felony child endangerment charges that carries state prison time of up to 6 years.
To be convicted of a DUID, the DA must show that the drug has impaired you to an appreciable degree and affected your ability to operate a motor vehicle as that of a reasonably prudent, sober and cautious driver.
The only way to objectively detect the presence of a drug is by a blood or urine test. If the officer who stops and detains you has probable cause to believe you were impaired by a drug, then you may be asked to perform certain FST or field sobriety tests. If asked to take a breath test that is negative for alcohol, the officer can request that you then submit to a blood test, or urine test under some circumstances, if the officer reasonably believes you are under the influence of a drug.
If you are 21 or over, not on probation and not a commercial driver, then you have no legal obligation to perform any coordination test requested by a police officer or to answer any questions about alcohol or drug use. The officer may still have probable cause to ask that you submit to a blood or urine test based on your driving conduct and overall demeanor, which may include slurred speech, dizziness, confusion, lack of coordination, violent behavior or experiencing hallucinations.
If the officer can demonstrate probable cause to stop and detain you and to request that you take a blood or urine test and you refuse, your driving privileges will be suspended for one year for a first DUI or DUID offense with no restricted license availability. Your refusal can also be used against you at trial as indicative of your impairment10. It is also an aggravating factor whereby you likely face jail time or more time if you have prior convictions.
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No Proof of Possession
An element of any drug possession charge is that you knew or were aware of the presence of the drug on your person or that it was within your control, which can include its possession by another person who may trying to sell it at your direction. You must also have been aware of the nature of the drug as a controlled substance. This could include proof of a prior possession charge or any furtive movement or conduct you made when approached by police, demonstrating that you knew you were in possession of a controlled substance.
If PCP is found in a jacket of yours, suitcase, handbag or car, you could try to show that someone else was using these items or driving your car shortly before you were arrested.
If you are arrested and no drugs are found on your person but someone with you did possess them, you could be arrested for possession as well depending on the circumstances. However, being merely in close proximity of an illegal substance is not sufficient to convict you without more.
Lack of Intent to Sell
Intent to sell is typically based on the quantity of PCP that you possessed. However, your defense attorney can introduce testimony from a drug expert that the amount in your possession was not unusual for users who fully intended to possess the drugs for their own personal use. This argument can be buttressed by the lack of other evidence such as scales, baggies or other paraphernalia commonly associated with a drug selling observation.
Police can also testify regarding evidence of possession with intent to sell if they observed by law a high number of visitors to your house over a period of several days or weeks who left shortly after arriving.
If you are able to convince the DA to a plea of possession, then this can make you eligible for any of California’s drug diversion programs.
Illegal Search and Seizure
All citizens have a right to be secure in their homes, cars and businesses from unreasonable searches and seizures. Under the 4th Amendment to the US Constitution and the state constitution, you or your home or car may not be searched without a search warrant although there are numerous exceptions to this requirement. For instance, you may be subject to a limited pat down search for weapons if detained on the street but only if the officer had a “reasonable belief based on specific articulable facts which, taken together with the rational inferences to be drawn from those facts reasonably warranted the officer into believing that (you) (are) dangerous and may gain immediate control of weapons”11. This is a standard that is less than probable cause to arrest someone.
If arrested, officers may search your person for weapons and contraband and your immediate area for safety purposes, but may not conduct a far reaching search of your home or business without a search warrant.
Of course, if the officer observes a drug or other contraband in plain sight, it may be validly seized.
If you are arrested, then you are subject to a search of yourself and a limited search of the immediate area for weapons as well. If you are stopped for a traffic violation, your car may not be searched unless the officer has probable cause to believe you are carrying controlled substances in your car, weapons or other evidence of a crime, usually by it being in open view12.
In other cases, a search warrant is required. Search warrants are not open-ended. They limit the extent, place, time and scope of the search. If the warrant is to search your home, officers may not use it to search your cars.
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- See Also PCP Fast Facts – National Drug Intelligence Center [↩]
- See Also Controlled Substance Schedule– Drug Enforcement Administration [Substances in this schedule have a high potential for abuse which may lead to severe psychological or physical dependence.Examples of Schedule II narcotics include: hydromorphone (Dilaudid®), methadone (Dolophine®), meperidine (Demerol®), oxycodone (OxyContin®, Percocet®), and fentanyl (Sublimaze®, Duragesic®). Other Schedule II narcotics include: morphine, opium, codeine, and hydrocodone.Examples of Schedule IIN stimulants include: amphetamine (Dexedrine®, Adderall®), methamphetamine (Desoxyn®), and methylphenidate (Ritalin®).Other Schedule II substances include: amobarbital, glutethimide, and pentobarbital.] [↩]
- People v. Barnes (1997) 57 CalApp.4th 552, 556 [↩]
- Russell v. Superior Court (1970) 12 Cal.App.3d 1114, 1117 [↩]
- People v. Rubacalba (1993) 6 Cal.4th 62, 65-67 [↩]
- Penal Code 11378.5 – Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale phencyclidine or any analog or any precursor of phencyclidine which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) or in subdivision (f), except subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of three, four, or five years. [↩]
- People v. Ormiston (2003) 105 Cal.App.4th 676, 682 [↩]
- Health & Safety Code 11353 (a) – Notwithstanding any other provision of law, any person 18 years of age or over who is convicted of a violation of Section 11353, in addition to the punishment imposed for that conviction, shall receive an additional punishment as follows: [↩]
- See Also Drug Evaluation & Classification Program – A drug recognition expert or drug recognition evaluator (DRE) is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol. The International Association of Chiefs of Police (IACP) coordinates the International Drug Evaluation and Classification (DEC) Program with support from the National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation. In addition to officers, who are certified as DREs, the DEC Program educates prosecutors and toxicologists on the DRE process and the drug categories. [↩]
- People v. Sudduth (1966) 65 Cal.2d 543, 547 [↩]
- Terry v. Ohio [↩]
- People v. Laursen (1972) 8 Cal.3d 192, 201 [↩]