Every person who possesses
- Any controlled substance as listed, or
- Any controlled substance, which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment.1.
This charge is a misdemeanor under most circumstances.
- Opiates and Opium Derivative: Codeine Methylbromide, Desomorphine,Heroin, Methyldihydromorphine,Morphine methylbromide, Myrophine, Nicocodeine, Oxycodone, Hydrocodone (Vicodin), Dihydrocodeine, Methadone, Psilocybin (mushrooms), et al
- Hallucinogenic Substances: Dimethoxy-Amphetamine, Marijuana, Mescaline, Peyote,Psilocybin, Gamma hydroxybutyric acid, Cocaine, Cocaine base, Fenethylline, Ethylamphetamine, et al.
- Stimulants: Amphetamine, Methamphetamine, Dimethylamphetamine, Benzphetamine, Methylenedioxymethamphetamine (MDMA, ecstasy, “molly”), et al.
- Depressants: In any compound or mixture, including: Amobarbital, Phenylcyclohexyl Piperidine PCP, Pphenylcyclohexyl Morpholine (PCM), Piperidinocyclohexane Carbonitrile (PCC), Lysergic acid, et al.,
- Steroids: In any compound or mixture, including: Androisoxazole, Dihydromesterone, Nandrolone, Testosterone, Chorionic Gonadotropin, Ketamine.
If you are charged with possessing cocaine (for example), a controlled substance, the prosecutor must prove the following to establish that you are guilty of drug possession:
- You unlawfully possessed a controlled substance;
- You knew of its presence
- You knew of the substance’s nature or character as a controlled substance;
- The controlled substance was cocaine (for example);
- The controlled substance was a useable amount
Below are list of potential legal defenses that may be used in a drug possession case.
Under Health & Safety Code Section 11350, it specifically provides a legitimate legal defense if the controlled substance in possession is a prescription. It states: “Except as otherwise provided in this division, every person who possesses… any controlled substance classified in …which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment.”
This means that, if you are found in possession of codeine (for example), regardless of whether it is a usable amount, you did not unlawfully possess any controlled substance, if, in fact, your doctor prescribed the medicine to you, in your name, for your use, in treatment of your illness. Under the law, with the help of an attorney, you would only need to raise a reasonable doubt about whether his or her possession of the drug was lawful because of a valid prescription2.
Health & Safety Code section 11350 is a completely “possession” offense, which means that the law is specifically punishing you for possessing something illegal. However, possession is required. Therefore, if you did not actually possess (which means having the substance at the present moment or in hand) the controlled substance, or even constructively possess the controlled substance (which signifies storing the substance somewhere else other than on hand, but still having control over it..), then you have not committed a violation under the essence of this law.
Health & Safety Code section 11350 requires knowledge of two things in order to be convicted. First, that you knew of the presence of the controlled substance. Second, that you knew of the substance’s nature or character as a controlled substance. Therefore, knowledge is a critical part of this charge. For instance, if you were to purchase a container of baby powder from a chain store, believing at the time, that you were indeed, purchasing baby powder at the time, when in reality, the contents were cocaine, you did not know the “nature or character” of the white substance to be a controlled substance, under the law.
The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”
A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to convict you under the law of California Health & Safety Code Section 11350 hs. This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.
Below are a list of potential programs and laws that HS 11350 may or may not be eligible for under California law.
Under Proposition 36: when a defendant is convicted of a “nonviolent drug possession offense,” the court must suspend the imposition of the sentence, grant probation, and require the defendant to participate in and complete a court-approved drug treatment program as a condition of probation.
Below are a list of potential penalties in a drug possession case in California.
|Fine||Up to $1,000|
|probation||3 years informal probation|
|Jail||Up to 1 year|
Possible community service, an amount as determined by the court
Possible Immigration Consequences
IS a BAR from relief from removal proceedings
- Under the law, “any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C. § 1127(a)(2)(B)(i). “Drug addicts and abusers are deportable and inadmissible even without a conviction. Likewise, those who the government has reason to believe are or were drug traffickers or their assistants are inadmissible, even without conviction. 8 U.S.C. § 1227(a)(2)(B)(ii).
May be considered an “aggravated felony” for immigration purposes
- Aggravated Felony: This is a predetermined category of crimes that, include both misdemeanor and felony offenses, which can bar a noncitizen from utilizing many different forms of immigration benefits. If you are convicted of a crime that is automatically considered an aggravated felony, it will likely subject you to removal proceedings before an immigration judge. Here, a conviction under 11350(a), depending on the circumstances, MAY be considered an aggravated felony.
- Health & Safety Code 11351- Possession and/or Purchase of a Controlled Substance for Sale
- Health & Safety Code 11352- Sale or Transportation of Controlled Substance
- California “Marijuana Cultivation” Laws – Health And Safety Code 11358
- Health & Safety Code 11359- Possession of Marijuana for sale
- California “Possession of Marijuana while driving” Law – Vehicle Code 23222(b)
If you have been arrested for and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- California Health And Safety Code Section 11350. (a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code. (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code. (c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant’ s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine. (e) It is not unlawful for a person other than the prescription holder to possess a controlled substance described in subdivision (a) if both of the following apply: (1) The possession of the controlled substance is at the direction or with the express authorization of the prescription holder. (2) The sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner. (f) This section does not permit the use of a controlled substance by a person other than the prescription holder or permit the distribution or sale of a controlled substance that is otherwise inconsistent with the prescription. [↩]
- See People v. Mower (2002) 28 Cal.4th 457, 479, 122 Cal.Rptr.2d 326, 49 P.3d 1067 [↩]