I. California Health & Safety Code 11350(a)/11351: Drug Possession and Drug Sales

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Legal Definition: HS 11350(a): Every person who possesses a controlled substance without a prescription is guilty under this section. A controlled substance includes, but is not limited to: Hydrocodone, Codeine, Morphine, Oxycodone, Heroin, Cocaine, Vicodin, Oxycontin, MDMA, Methamphetamine, LSD, Ecstasy, Molly, Mushrooms, PCP, and more.

For a person to be convicted of a violation of HS 11350(a) the prosecution must prove the following:

1. You unlawfully possessed a controlled substance;

2. You knew of its presence;

3. You knew of the substance’s nature or character as a controlled substance;

4a. The controlled substance was [the type of controlled substance];

OR

4b. The controlled substance was an analog of [the type of controlled substance];

AND

5. The controlled substance was in a usable amount.

Legal Definition: HS 11351: Every person who possesses for sale, or purchases for purposes of sale, any controlled substance, is guilty under this section. A controlled substance includes, but is not limited to: Hydrocodone, Codeine, Morphine, Oxycodone, Heroin, Cocaine, Vicodin, Oxycontin, MDMA, Methamphetamine, LSD, Ecstasy, Molly, Mushrooms, PCP, and more.

For a person to be convicted of a violation of HS 11351 the prosecution must prove:

1. You unlawfully possessed a controlled substance;

2. You knew of its presence;

3. You knew of the substance’s nature or character as a controlled substance;

4. When you possessed the controlled substance, you intended to sell it/that someone else sells it;

5a. The controlled substance was [the type of controlled substance];

OR

5b. The controlled substance was an analog of [the type of controlled substance];

AND

6. The controlled substance was in a usable amount.

II. What does this mean?

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In order to prove you guilty of this crime, the Prosecution must prove that [the analog drug] is an analog of some kind of controlled substance. To be an analog of a controlled substance, it has to have a chemical structure substantially similar to the structure of a controlled substance; or, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to or greater than the effect of a controlled substance.

A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user. So in other words, if the amount is so small that it cannot possibly affect you, or give you the high you or someone would normally seek, but it can still be used, which is considered a usable amount.

It is also not a defense to say you did not know what substance you had on you, so long as you knew you possessed a controlled substance. A person does not have to actually hold or touch something to possess it. It is enough if the person has to control it/the right to control it, either personally or through another person.

Possession of drugs may be actual or constructive possession. Actual possession means that you have the drugs on your person or within your immediate control, like in your pocket or in the glove box of your car. Constructive possession means that you do not have the drugs on you but you have the authority to control the possession of the drugs such as having drugs stored at a friend’s house.

III. Penalties

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If you are convicted of HS 11350(a), also known as Simple Possession, you could be sentenced to County Jail for upwards of one year. If you are convicted of HS 11351, also known as Drug Sales, you could be sentenced to State Prison for upwards of 16 months, two years, or three years. You would be required to serve 50% of that sentence. Understand that these are two different charges: Simple Possession is a misdemeanor only; while Drug Sales is a straight Felony; they are not wobbler offenses, but in fact, different offenses entirely, turning on whether the drugs were for personal use, or for sales. There are also enhancements of you have for sale a much larger amount, which could lead to more custody time if convicted.

You would also be subject to likely drug programs, N/A classes, and likely having to register with your local Law Enforcement Agency as a Drug Offender. Also, a good amount of people who find themselves in this situation also face issues with Professional Licenses and Immigration issues. A conviction under 11351 specifically, is considered much more severely for Immigration purposes, as one of their listed offenses that leads to automatic deportation.

IV. Common Defenses

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1. Statute of Limitations
2. Insufficient Evidence
3. Mistake of Fact
4. Violation of your Rights

The amount of drugs is also important in determining whether you are facing a Simple Possession charge or a Drug Sales charge. If there is only a small amount on you, with cash, the argument can be made that you were actually a buyer and user, and not selling the drugs to another person. Another issue is whether you even knew you had the drugs on you at all. Sometimes, at music festivals, people with drugs will slip items into your pockets, unbeknownst to you, if they think the police are following them. Then, suddenly, you’re asked if you can be searched, and you, not knowing the drugs are in your pocket, are found to be in possession of drugs. 

Another common issue is Search and Seizure violations, when police illegally stop or detain you, and then perform a search of you. Remember, police cannot just choose to arrest you and search you; they need Probable Cause in order to even be bothering you to search your body. This is, of course, if you remember to never give police consent to search you or your vehicle at any time.

V. Call Today

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