Since the federal government and the state government of California declared war on controlled substances and drugs, prosecution teams go after drug crimes with ferocity. Consequently, it is common for drug crime allegations to stem from unreasonable arrest warrants, illegal search and seizure, lying informants, dry-labbing drug lab results, and exaggerated police reports. Riverside Criminal Defense Attorney Law Firm understands how the charges are prosecuted and investigated. We are well-versed with the criminal justice process and dedicated to protecting your constitutional rights.
An Overview of Drug Crimes in California
California is one of the most populous and largest states in the U.S. With the shared border with Mexico and several transportation hubs, drugs enter and leave the state regularly.
Many laws have been enacted over the years to stop the importation of drugs into Golden State, curb distribution within the state, and reduce drug abuse and drug-related offenses. Typical drug crimes include:
Possession of a Controlled Substance
Under HS Code Section 11350, possession of controlled substances is having under your control or in your possession narcotics or drugs that are illegal per federal or state laws and you don't have a legal prescription.
To be found guilty, the prosecution must prove beyond any reasonable doubt that:
- You possessed a drug or narcotic,
- You didn't have a prescription for the drug or narcotic,
- You were aware of the controlled substance's existence,
- You knew the substance was a controlled substance, and
- The drug was in usable amounts.
The legal phrase "controlled substance" means a chemical or drug whose use, possession, or manufacture government controls per the U.S. Controlled Substance Act. Examples include heroin, LSD, peyote, and cocaine. Moreover, it is an offense to possess prescription drugs like ketamine, Xanax, codeine, oxycodone, and Vicodin.
Violation of HS 11350 is a misdemeanor. The crime attracts a maximum of one thousand dollars in fines and a year in jail. However, it could be prosecuted as a California felony if you have a previous conviction for a serious felony or sex crime. A conviction carries three (3) years in jail.
In some cases, the accused might be eligible for a drug court or drug diversion program. The program permits a defendant who has committed a non-violent drug possession offense to serve their term in a drug treatment program in place of prison or jail.
Depending on the case facts, an HS 11350 offense could result in adverse immigration consequences.
If charged with a felony, you might lose the right to possess or acquire a gun.
While the criminal penalties are severe, your experienced criminal defense lawyer could raise defenses and try challenging your charges. The legal expert could use defenses, such as:
- No possession — You can only be convicted under the code in question if you possessed the controlled substance. Therefore, it is a defense to prove that you didn't have the drug.
- Legal prescription — You aren't accountable under the law if you had a written and valid prescription for the drug from a certified veterinarian, podiatrist, dentist, or physician.
- Illegal search and seizure — Under the Fourth Amendment to the United States Constitution, you are free from an illegal search and seizure. If the police acquire evidence from the search and seizure, the proof could be excluded from your case, resulting in case reduction or even dismissal.
Under the Influence of a Controlled Substance (HS 11550)
HS 11550 makes it an offense to be under the influence of a narcotic drug or controlled substance.
To be sentenced for the crime, the prosecution should establish the following:
- You willfully used controlled substances or narcotic drugs.
- You were willfully under the influence of drugs or substances.
The legal term "under the influence" means the drug affected the:
- Mental condition or brain,
- Physical condition or muscles, or
- Nervous system.
Violation of the statute is a California misdemeanor, punishable by a one-year county jail sentence. Sometimes, the accused might be eligible for drug diversion programs.
A conviction could have adverse immigration effects, causing a non-citizen to be marked inadmissible or be deported.
Some of the legal defenses you can use to beat the criminal charge include:
- The controlled substance was lawfully administered — You are innocent if a licensed individual lawfully administered the drug or narcotic.
- Not under the influence — You can fight the allegation by proving that you weren't under the influence. The defense's validity increases if you did not have the drug during your arrest, and no chemical test was administered.
- Involuntary intoxication — One of the case's elements, the prosecutor, should prove that you willfully used the controlled substance or were deliberately drunk. It is, therefore, a defense to prove you didn't act intentionally.
An HS 11550 conviction can be expunged. Per PC 1203.4, the expungement releases you from almost all penalties, consequences, and disabilities stemming from your conviction. It allows you to secure lucrative employment, housing, and education opportunities without being affected by your criminal record. To qualify for expungement, you:
- Must have completed probation
- Aren't currently in jail, on probation, or prosecuted with a crime
Sale of a Controlled Substance (HS 11352)
Under Health and Safety Code Section 11352 HS, transporting or selling controlled substances means:
- You engaged in any of the below with controlled substances:
- Sold Them
- Furnished them
- Administered them
- Gave them away
- Imported them into California
- Transported them for sale
- You were aware of the existence of the drugs.
- You were aware they were controlled substances.
- The drug was in a usable amount if you are charged with transporting it for sale.
How the Prosecution Team Builds Your Drug Trafficking Criminal Case
Investigation for this crime involves sting operation (efforts to catch defendants through deceptive methods). Sometimes arrests are because the law enforcement agency acquired details from an informant.
An undercover controlled buy is another way to know about the crime. It can be either through the internet or in person. A police officer will pose as a seller or buyer of the drugs, aiming to lure the suspect into acting in a manner that could support their arrest.
Surveillance posts or observation is another method of collecting evidence. They are areas where police build camps for the suspect.
Penalties, Consequences, Sentencing
A violation of HS 11352 is a California felony. A first-time offense attracts the following penalties:
- Formal (felony) probation
- Three, six, or nine years in jail or three, four, or five years in jail under a realignment program if you transported the drugs for sale purposes across at least two county lines in California
- Twenty thousand dollars in fines
However, you won't qualify for a suspended sentence or felony probation if one of the statements below is correct:
- You were found guilty for breaking HS 11352 when you offered to sell or sold at least 14.25 grams of heroin.
- You were sentenced for HS 11352, and you have a prior criminal record of HS 11351 or HS 11352.
- You were found guilty of HS Section 11352 HS for selling cocaine, methamphetamine, or cocaine base. You also have a previous conviction for possessing for sale or selling any controlled substance.
Several aggravating factors might result in more severe penalties, including:
- Trafficking cocaine, cocaine base, or heroin in or near homeless shelters or drug treatment facilities might result in an additional one-year jail sentence.
- Selling or transporting vast quantities of cocaine or heroin attracts a maximum additional fine of eight million.
- If found guilty of the offense in question and you've a previous felony conviction for any drug offense, you might face an additional three-year jail sentence for every previous conviction.
The court could also impose harsher penalties for transporting or selling controlled substances if the defendant was aware that he/she was furnishing, selling, giving away, or administering the drug to:
- An expectant mother
- An individual with a previous violent felony conviction
- A person under a drug challenge or mental health disorder treatment
HS 11352 Involving Minors
Transportation or sale of drugs involving a minor is aggressively prosecuted in California.
A person could be convicted if they are at least 18 years, and they either:
- Administer, furnish, give away, or sell controlled substances to a child
- Use, hire, or employ a minor to give away, sell, prepare for sale, peddle, or transport controlled substances.
The conduct will attract a three, six, or nine-year imprisonment.
Moreover, you risk facing an additional and consecutive one or two-year prison sentence if:
- The controlled substance was cocaine base, cocaine, or heroin, and
- The crime occurred within or at a church, mosque, school, or facility where minor children are often present.
Fighting HS 11352 Charges
Your seasoned criminal defense attorney could use any of the legal strategies below to fight the charge against you.
Unlawful Search and Seizure
Most arrests for HS 11352 originate from unlawful search and seizure, including:
- Searching your property or person without a search warrant
- Illegally searching or detaining the accused with no probable cause.
- Exceeding the search warrant's scope
If a defendant was illegally searched and was consequently prosecuted for HS 11352, their attorney should bring a motion to suppress evidence. Should the motion prevail, the prosecution should dismiss your charges.
If you are charged with offering to transport, furnish, or sell a drug, the lack of intent might serve as a defense. You cannot be guilty without the intention to execute the offer.
Lack of Information and Knowledge
You cannot be convicted of HS 11352 if:
- You were not aware that the goods you transported or sold were controlled substances.
- You did not know of the narcotic's existence.
Forging or Altering a Prescription
Per HS 11368, it is an offense to:
- Issue, utter, alter, or forge a prescription for narcotic drugs.
- Utter or issue narcotic drug prescription with a fictitious or forged signature.
- Acquire or possess narcotic drugs due to a forged, altered, or fictitious prescription
Violation of HS 11368 is charged as a wobbler. If prosecuted with a California misdemeanor, you might face the following penalties:
- One thousand dollars on fines
- Misdemeanor probation
- A one-year jail sentence
A felony attracts felony probation and sixteen months, two (2), or three (3) years in state prison.
Should the judge grant probation, you might serve little or no time. However, you should adhere to the following terms and conditions for three years:
- Paying your fines
- Drug counseling
- Community service
- You should not violate any law.
- Regular meetings with your probation officer
If you break one of the conditions, the court will detain you to complete the sentence.
Despite the harsh penalties carried by HS 11368, there are numerous defenses that your attorney could use to fight your charges. They include:
- The prescription was legal.
- You did not know the prescription was altered or forged.
- Although you forged the prescription, you did not attempt using it.
- You did not know you acquired drugs with an altered or forged prescription.
- You did not know you had the drugs.
Operating or Maintaining a Drug House
Under HS 11366, it is an offense to maintain or operate a place whose purpose is an unlawful sale or giving away controlled substances.
Usually, the legal term "place" means an apartment, house, motel room, or hotel room.
Please note, you can only be convicted of this crime if you maintained or opened a drug house to offer other persons a chance to use drugs. Having a place for personal drug use won't make a defendant guilty of the HS 11366. However, it could result in possession of controlled substances conviction.
Penalties Attracted by HS 11366
Violation of HS 11366 is a California wobbler.
If charged with a misdemeanor, you will face a year in jail and a maximum of one thousand dollars in fines. On the other hand, a felony attracts:
- Ten thousand dollars in fines
- Sixteen months, two years, or three years in state prison
The offense could also result in property forfeiture unless the asset is:
- Used for another legal purpose or is a family residence, or
- Owned by at least two persons, and one party does not know of the illegal conduct.
The most effective legal defense will depend primarily on your case facts. Some of the defenses your attorney could use include:
- You did not know people were doing drugs in your home.
- People only did drugs in your home once
- Police misconduct
- The controlled substance was for personal use.
One of the best legal strategies to an HS 11366 charge is that there was no compelling proof that your conduct satisfied the legal meaning of the statute. The prosecution should establish that:
- The distribution of drugs at your drug house happened repeatedly.
- You weren't the only one doing drugs in the house.
Challenging any of these elements is adequate to prevail in the criminal case.
Manufacture of Imitation Controlled Substances
HS 109575 makes it illegal for you to knowingly possess, distribute, or manufacture to distribute imitation controlled substances.
Imitation controlled substances are fake drugs whose intent is to be mistaken for the actual commodities.
Violation of HS 109575 is a California misdemeanor. It attracts the following penalties:
- Fines of one thousand dollars
- A six-month county jail sentence
The judge could sometimes award a summary (misdemeanor) probation in place of serving time.
Fighting the Criminal Charge
If accused of breaking this statute, you could raise a practical legal strategy to dismiss or reduce the charge. Common legal defenses include:
- There were no imitation controlled substances — Recall that HS 113575 only applies to imitation controlled substances. Therefore, it is a defense for you to prove that although you distributed or made the drugs, they weren't imitation controlled substances.
- Illegal search and seizure — According to the Fourth Amendment to the United States Constitution, the police should not subject a suspect to an unreasonable search and seizure. If the law enforcement agency gets evidence from the search, the prosecutor should exclude that proof from your criminal case.
- Falsely accused — It is common for persons to be charged founded on false accusations stemming from anger, revenge, or jealousy.
Possession of Marijuana While Driving
Under Vehicle Code Section 23222b VC, it is a crime to operate your car while in possession of marijuana that's not in a container or is in an open container.
Please note that you can lawfully transport marijuana if it's in a sealed container. Additionally, you don't violate the law if you are authorized to possess bhang.
Violation of VC 23222b is an infraction. It carries up to $100 in fines.
You Can Use a Legal Strategy
The following legal defenses could work for you:
You are Authorized to Possess
It's a legal defense to prove that you are authorized to possess bhang. Some of the person permitted to have this drug include:
- Certified marijuana caregivers
- People with medical marijuana identification cards
- Patients with legal prescriptions
The law applies to a driver on a public road, including California highways and streets. It doesn't apply to motorists driving on a driveway or private road. It means it is practical to urge that you were on a private road when the law enforcement officer stopped you.
Can You Get Your Conviction Expunged?
An expungement does not apply to an infraction. Per California laws, infractions are not deemed criminal acts.
Marijuana Cultivation Laws (HS 11358)
Since Proposition 64, it's lawful to grow bhang for recreational uses provided you are above twenty-one years, and you cultivate six (6) cannabis plants.
- You should comply with all local ordinances, and
- You cannot grow more than 6 (six) plants at one private residence.
To cultivating means doing one of the below:
- Any marijuana part or marijuana.
Penalties for Illegal Cultivation of Marijuana
If found guilty of HS 11358, you might:
Face Criminal Consequences
If a person aged between eighteen and twenty violates this statute, they face an infraction. It carries a fine of one hundred dollars.
The statute is a California misdemeanor if you are above 21 years and grow more than six cannabis plants. The offense attracts a five-hundred dollars fine and six months in county jail.
You might face felony penalties if you cultivate more than six (6) plants and you:
- Are a registered sex offender
- Have a serious violent felony conviction
- Have at least two HS 11358 previous convictions
- Break an environmental law in your cultivation activities
A felony charge is punishable by:
- Ten thousand dollars in fines
- A maximum of three years in county jail
Under PC 100, persons found guilty of illegal cultivation might postpone the sentence imposed to complete their drug treatment. It is called a deferred entry of judgment.
You qualify for deferred entry of judgment if:
- You are charged with cultivation of excessive bhang or
- You are a non-violent first or second-time offender.
Re-sentencing Per Proposition 64
Cultivation law was harsher before Proposition 64. The initiative permits persons found guilty per a previous cultivation law to apply for dismissal of the criminal charge or re-sentencing.
The judge should:
- Assume you satisfy re-sentencing criteria
- Grant re-sentencing unless it could result in public safety threat
Some of the defenses that your defense attorney can use to beat the charge include:
- Somebody else owned the cannabis.
- Illegal search and seizure
- No marijuana
Marijuana Sales (HS 11360)
HS 11360 makes it illegal to give away, import into California, transport intending to sell, or sell any amount of hashish or marijuana without the required state license.
However, you cannot be found guilty if you are a medical marijuana user and transported bhang for personal use. Your primary caregiver can also transport pot and give it to you in amounts reasonably associated with your medical needs.
Violation of HS 11360 is a wobbler. A misdemeanor charge is punishable by a fine of five hundred dollars and six months in jail. On the other hand, a felony attracts the following penalties and consequences:
- Two (2), three (3), or four (4) years in jail
- The responsibility to reveal your conviction when asked on job applications
- Loss of firearm rights
Find a Reputable Drug Crime Defense Attorney Near Me
If you think you are being investigated or prosecuted for a drug crime, you need a seasoned lawyer to safeguard your constitutional rights. A conviction carries severe penalties, including stigma, fines, and incarceration. You might put your livelihood at risk or be unable to secure future educational, housing, and employment opportunities. At Riverside Criminal Defense Attorney Law Firm, we understand the anxiety and stress a prosecution could bring. As a result, we could listen to your side of the story and encourage you to ask questions and concerns. Contact us today at 951-946-6366 to schedule your initial free consultation.