12 Things To Know About California “Meth” Laws | HS 11377,11378,11379

Overview Of California “Meth” Laws

Health & Safety Code sections 1137711378 and 11379 are laws that make certain actions illegal for specified types of drugs, namely methamphetamines.

The actions that are illegal under these sections are possession of methamphetamines, possession with the intent to sale methamphetamines, and the transportation, sale & administration of methamphetamines, respectively.

Which Drugs Are Illegal Under These Laws?

Methamphetamines. A chemical made up of methamphetamine, methylamphetamine, or desoxyephedrine. When it is in its crystalline form, the drug is called crystal meth, ice, Tina, or glass.

  • Examples: Amphetamine (Dexedrine®, Adderall®), methamphetamine (Desoxyn®)1.

Schedule III Controlled Substances. Drugs defined as having a moderate to low potential for physical and psychological dependence.2

  • Examples:   Combination products with less than 15 milligrams of hydrocodone per dosage unit (Vicodin), Products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine (“Special K”), anabolic steroids, testosterone3.

Schedule IV Controlled Substances. Drugs defined as having a low potential for abuse and low risk of dependence.4

  • Examples:   Xanax, Soma, Darvon, Darvocet, Valium, Ativan, Talwin, Ambien.5

Schedule V Controlled Substances. Drugs defined as having a lower potential for abuse than Schedule IV and consist of preparations containing limited quantities of certain narcotics.

  • Examples:  Cough preparations with less than 200 milligrams of codeine or per 100 milliliters (Robitussin AC), Lomotil, Motofen, Lyrica, Parepectolin.6

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Definition of Health And Safety Code 11377

Under this law, it is illegal to possess methamphetamines, as well as any controlled substance listed under Schedule III, IV or IV, unless it is prescribed by a licensed medical professional.

How Does the Prosecutor Prove This Charge?

If you are charged with possessing methamphetamine or other substance listed above, a controlled substance, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code § 11377:

  • You unlawfully possessed or exercised control over 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 methamphetamine or other included substance;
  • The controlled substance was in a usable amount.

Penalties

The code section is a“Wobbler” Offense, meaning that it can be charged as either a misdemeanor or a felony, depending on the circumstances of your case, as determined by the prosecutor

PenaltiesMisdemeanorFelony
FineUp to $1,000As determined by the court
Probation3-5 years summary probation3-5 years formal probation
JailMax of 1 year county jail16 months – 3 years in state prison
Eligiblities
  • Is eligible for an Deferred Entry of Judgment sentence,
  • Is not a “strikeable” offense,
  • Does require registration as a drug offender,
  • Is eligible for Proposition 36 diversion sentence.
    • 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.

Health & Safety Code Section 11378 Defined

Under this law, it is illegal to possess FOR SALE, methamphetamines, as well as any controlled substance listed under Schedule III, IV or IV, unless it is prescribed by a licensed medical professional. This law requires the specific INTENT to sell the illegal drug, in addition to possessing it.

How Does the Prosecutor Prove This Charge?

If you are charged with possessing methamphetamine for sale (or other substance listed above), a controlled substance, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code § 11378:

  • You exercised control over, or purchased from another, a controlled substance;
  • You knew of its presence;
  • You knew of its nature as a controlled substance;
  • The substance was in a usable amount sufficient to be used for sale or consumption;
  • You possessed or purchased the controlled substance with the specific intent to sell same.

Penalties

PenaltiesFelonies
FinesAs determined by the court
Probation3-5 years formal probation
Prison1-3 years

This charge is a felony and carries all the weight and stigma of being deemed a “felon” under the eyes of the law, including but not limited to:

  • Lose right to possess firearm,
  • Lose right to vote,
  • Lose right to sit on a jury,
  • Lose right to hold public office,
  • Required to provide law enforcement with a sample of your DNA,
  • Immigration consequences, as a drug abuser, if you are a noncitizen.
Eligibility
  • Is not eligible for an Deferred Entry of Judgment sentence,
  • Is not a “strikeable” offense,
  • Does require registration as a drug offender,
  • Is not eligible for Proposition 36 diversion sentence.

Health & Safety Code Section 11379 Defined

Under this law, it is illegal to transport, sell, furnish, administer or give any methamphetamine, or controlled substance listed under Schedule III, IV or IV, unless it is prescribed by a licensed medical professional.

How Does the Prosecutor Prove This Charge?

If you are charged with transporting methamphetamine (or other substance listed above), a controlled substance, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code § 11379:

  1. You transported, sole, furnished, administered, or gave away a controlled substance;

OR

  1. You offered to transport, sell, furnish, administer, or give away a controlled substance;
  2. You knew of the controlled substance’s presence;
  3. You knew it to be a controlled substance.7

Penalties

  • Felony conviction
    • This charge is a felony and carries all the weight and stigma of being deemed a “felon” under the eyes of the law, including but not limited to:
      • Lose right to possess firearm,
      • Lose right to vote,
      • Lose right to sit on a jury,
      • Lose right to hold public office,
      • Required to provide law enforcement with a sample of your DNA,
      • Immigration consequences, as a drug abuser, if you are a noncitizen.
  • 1-4 years in prison
  • 3-5 years formal probation
  • Fines and fees, as determined by the court
  • Additional requirements, as determined by the court
  • Any combination of the above, as determined by the court

Eligibility

  • IS NOT eligible for an Deferred Entry of Judgment sentence,
  • IS NOT a “strikeable” offense,
  • DOES require registration as a drug offender,
  • IS NOT eligible for Proposition 36 diversion sentence.

Understanding These Charges

What is “possession” under these laws?

There are 2 kinds of possession under these laws:

1.     Actual Possession – You have actual and/or exclusive control over the substance, you actually have it in your hand or on your person.

Example:  You are arrested with methamphetamine in your pocket (under H&S § 11377).

Example:  You are arrested with a large quantity of methamphetamine in your car (under H&S § 11378 and 11379).

2.     Constructive Possession –  You do not have to actually hold or touch the substance, to possess it. It is enough if you have control over it/ [or] the right to control it, either personally or through another person.

  • Example:  2 or more people may possess something at the same time, such as in a car, etc.

What is “knowledge” under these laws?

  • Knowledge – You were aware of the substance’s presence, AND that it was a controlled substance.8
  • Example:  You are arrested with pills that you knew were in your purse, that you thought were Vicodin, but in actuality, were Xanax. Both are illegal controlled substances under H&S § 11377, the mere fact that you knew that the substance was in your possession, and you knew that it was a controlled substance is enough.
  • Example:  You are arrested with the entire trunk of your car filled with Xanax, and you knew that it was Xanax. Depending on whether you had traveled any measurable amount of distance, you would be violating H&S § 11378 AND §11379.

What is a “usable amount” under these laws?

  • Usable Amount – Quantity of a controlled substance suitable for you to use, whether or not it is enough, in amount or strength, to affect the user.9
  • Example:     You are arrested while holding Adderall® pill in your hand.10
  • Example:      You are arrested with a full bottle of   Adderall®   in the cup holder of your vehicle.  ((Under H&S 11378 and 11379))

What is “selling” under these laws?

  • Selling – Exchanging one of the listed controlled substances for money, services, or anything of value.

Legal Defenses

Depending on the circumstances, an experienced and diligent attorney, like the attorneys of the Aizman Law Firm, will evaluate your case and assess the most effective legal defenses to assist in negotiating a possible charge reduction, or if applicable, dismissal of the charges. Below are possible legal defenses to charges under Health & Safety Code §11377, §11378 and §11379:

  1. The Controlled Substance Was Prescribed.
  • Under Health & Safety Code § 11377, §11378 and §11379:  All of the sections specifically provide a legitimate legal defense if the controlled substance is a prescription. All three sections state: “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, 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 a diligent and conscientious attorney, you would only need to raise a reasonable doubt about whether your possession of the drug was lawful because of a valid prescription11.
  1. You did not Possess the Controlled Substance.
  • Under Health & Safety Code § 11377, 11378 and 11379:  These laws include a very important element of “possession.” Therefore, if you did not actually possess, or even constructively possess the controlled substance, then you have not committed a violation under the essence of these laws.
  1. You did NOT KNOW that it was a controlled substance/it was present.
  • Under Health & Safety Code § 11377, 11378 and 11379:  These laws require 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 these charges.
  1. You had NO INTENT.
  • Under H&S Section 11378:  Although in your possession, you had no intent to sell the illegal drugs. In fact, perhaps they were solely for your personal use.
    • Effect:  Possible charge reduction, to Health & Safety Code § 11378 charge, which can be charged as either a misdemeanor or a felony, allows the possibility of a diversion, and carries less time in custody.
  • Under H&S §11379:  Although in your possession, you had no specific intent to engage, or even offer to engage in any of those acts, such as to transport, furnish or administer the controlled substance.
    • Effect:  Possible charge reduction, to Health & Safety Code § 11379 charge, which can be charged as either a misdemeanor or a felony, allows the possibility of a diversion, and carries less time in custody.
  1. You did NOT TRANSPORT the Controlled Substance.
  • Under Health & Safety Code § 11379:  A knowledgeable attorney can attempt to persuade the prosecutor that, regardless of the amount of movement, or lack thereof, that the element of intent to transport the controlled substance cannot be met. As a result, a charge reduction to simple possession may be possible.
  1. You were a victim of ENTRAPMENT by law enforcement officials.
  • Under Health & Safety Code § 11377, 11378 and 11379: 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.12 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.”13
  1. There is INSUFFICIENT EVIDENCE against you.
  • Under Health & Safety Code § 11377, 11378 and 11379: A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to convict  you under these laws. 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.

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Footnotes

  1. http://www.justice.gov/dea/druginfo/ds.shtml []
  2. http://www.justice.gov/dea/druginfo/ds.shtml []
  3. Id. []
  4. Id. []
  5. Id. []
  6. Id. []
  7. People v. Rogers (1971) 5 Cal.3d 129 []
  8. Id. []
  9. Id. []
  10. Under H&S 11377 []
  11. See People v. Mower (2002) 28 Cal.4th 457, 479, 122 Cal.Rptr.2d 326, 49 P.3d 1067 []
  12. http://dictionary.law.com []
  13. Id. []