1. Definition and Criminal Elements
Because the state of California recognizes that drug use and addiction can have devastating impacts on California families and communities, the legislature has criminalized the sale, use and possession of a number of illicit drugs. Often times, convictions for the possession of illicit drugs are sought under California Health and Safety Code Section 11350 for possession of an illegal substance. The possession of even a very small amount of some drugs can result in a felony conviction under this statute.
To obtain a conviction for the possession of a controlled substance under this section, each of the following elements must be proved by the prosecutor:
a) unlawful possession, actual or constructive, of a controlled substance;
b) knowledge of the controlled substance’s presence;
c) knowledge of the character and nature of the substance as a controlled substance; and
d) possession of a usable amount of the controlled substance, which under the statute, is enough to be used by an individual as a controlled substance and is more than debris or trace amounts.
Some of the drugs considered controlled substances under the statute include: heroin, cocaine, opiates, LSD, peyote, hallucinogens, prescription painkillers not obtained through a valid prescription.
2. Related Offenses
Possession of a controlled substance is an offense that is closely related or similar to the following offenses:
California Health and Safety Code Section 11157 – Possession of Marijuana
California Health and Safety Code Section 11550 – Under the Influence of a Controlled Substance
California Health and Safety Code Sections 11377 through 11379 – Possession, Sales and Transportation of Methamphetamines
California Health and Safety Code Section 11351 – Possession of a Controlled Substance for Sale
California Health and Safety Code Section 11352 – Sales and Transportation of Controlled Substances
Example A: The defendant went to a restaurant to meet a friend, and the friend provided him a small amount of heroin sealed inside a small envelope. The defendant did not wish to have the heroin but was afraid of upsetting his friend, so he put the envelope in his pocket and forgot about it. Later that evening, when the defendant was driving him, the local police stopped the defendant for suspicion of operating his vehicle under the influence of alcohol. The defendant was searched incident to his arrest and the police discovered the heroin in his pocket. The defendant may be convicted of possession of a controlled substance under these circumstances.
Example B: The defendant hosted a social event at his home. After the dinner, he found something the appeared to be a small package of cocaine when he was cleaning his bathroom. In order to dispose of the product as quickly as possible, the man drives to the local police department to turn it in to police. On his way to the station, he is stopped by a police officer and the substance is discovered in his vehicle. Because his possession of the controlled substance was only momentary since he was taking it to police in order to have the substance disposed, he would not be guilty of possession of a controlled substance.
4. Defenses to the Crime
As set forth in Example B above, momentary possession for the purpose of turning in or disposing of the controlled substance would be a defense to a charge of possession of a controlled substance.
Alternatively, any evidence related to the possession of the controlled substance that was procured through an illegal search or an illegal seizure may be excluded if the defendant is successful in challenging the evidence or the legality of obtaining it.
Charges under this statute are typically felony charges, and if convicted of felony possession, a defendant may be sentenced to up to three years in prison. If the drug in question is GHB, the charge may be either a misdemeanor or a felony. If a defendant is convicted under this statute, the defendant may benefit from the application of Proposition 36, resulting in a diversion which would result in the dismissal of the charges once the defendant successfully completes court-approved drug diversion programming.
6. Criminal Defense
If you or a loved one are under investigation for or have been charged with possession of a controlled substance, you should seek the services of an experienced criminal defense attorney. The penalties resulting from a conviction under this statute can be severe. An experienced attorney can help you navigate the criminal prosecution process and ensure that all avenues of defense strategy are pursued.
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