If you or your loved one is facing possession of a controlled substance for sale, you will need to hire the services of an experienced drug attorney as soon as possible. You will realize that sometimes police reports are not always accurate, especially when it comes to drug crimes. Whatever happens, leading to your arrest, you will need the services of an experienced attorney to take complete charge of your case. Most drug crimes will have a long-lasting effect on your life and this, therefore, calls for careful considerations when hiring a criminal defense attorney to defend you.
At Riverside Criminal Defense Attorney Law Firm, our team is dedicated to providing quality legal representation. We understand the legalities surrounding drug crimes and will use our experience to ensure you obtain the best possible outcome in your case. This article will shed more light on the possession of a controlled substance for sale charge.
Possession Of A Controlled Substance Intending To Sell
In California, you will face charges for possession of controlled substances for sale under Health and Safety(HS) Code 11351. Under this section, the law prohibits the possession of controlled substances for sale or distribution. If you purchase narcotics drugs or controlled substances intending to sell, you will face charges. A controlled or a prohibited substance is either a chemical or a drug whose manufacture, use, and possession are under the U.S Controlled Substance Act. Some of these controlled substances include:
- hallucinogenic substances, and
- prescription drugs without a valid prescription from a medical doctor, dentist, veterinarian, or podiatrist. Examples of these drugs are Oxycontin, Vicodin, code in, and even some illicit drugs.
Certain items are referred to as controlled substances since they are either prescribed for use by a medical doctor or are illegal. You should note that concentrated cannabis and marijuana possession for sale is covered under Health and Safety Code 11359.
Elements of A Possession of A Prohibited or Controlled Substance For Sale Charge
When you are facing a drug crime charge like possession of a controlled substance with intent to sell, the prosecution must prove beyond reasonable doubt the following:
- That you purchased the controlled substance,
- you possess the drug or controlled substance,
- you knew you had the controlled substance,
- you possess more than enough of the controlled substance for sale,
- that you intended to sell,
- you bought the drug intending to sell,
- you knew that the drug is a controlled substance.
What Does Possession of A Controlled Substance Mean?
Under the Health and Safety Code Section 11351, the law equates possession of a controlled substance to control. Therefore, you can have actual, joint, or constructive control of a controlled substance.
Actual Possession of A Controlled Substance For Sale
Actual possession of an item is the physical possession of the item, meaning you have it in your person. For example, you can have the prohibited substance in your backpack or pocket.
Joint Possession of a Prohibited Drug
Joint possession of a controlled drug is a situation whereby you and another person have control of the substance.
Constructive Possession of a Controlled Substance
It may be tricky to identify when it comes to constructive possession. The prosecution will prove you have possession of a drug when you can access it or are in a position to wield control of it even if you do not have it in your person. The prosecution usually uses circumstantial evidence to prove you have possession since there isn't any direct evidence to link you with the drugs.
You Knew You Are In Possession of A Controlled Substance
The prosecution has to prove beyond reasonable doubt that you were aware that you had an illegal drug or prohibited substance. This knowledge plays a crucial role in a drug case, and it would be wrong to charge you for drug possession while you are unaware that you possess them. For instance, if you help your friend with a place to stay, they keep the controlled substance in your place without your prior knowledge. Then the prosecution should not charge you with possession with intent to sell charges.
You Knew That the Drug in Your Possession is A Prohibited Substance
All that the prosecution requires for a possession of a controlled substance to hold in court is that you know that the drug is illegal or the nature of the controlled substances. It doesn't matter that you do not know the chemical composition of the illegal drug, its name, or even its effects. You will realize that the jury will take it that you are aware of the nature of the drugs simply because you had the prohibited substances. Another significant role in knowing the drugs is how you react when discovered.
You Possess More Than Enough of The Prohibited Substance For Sale
The prosecution will prove that the drug you possess is more than what you may consume. Due to this fact, the prosecution will then assume you had the drugs for sale. This logic has a flaw in that if you are a habitual user, you could stock up for future use.
You Intended To Sell
The prosecution will have to prove that you intended to sell the illegal drugs in your possession for a charge to hold in court. When it comes to intention to sell, you do not have to sell the drugs personally, but you could have someone else sell them, and this will lead to a conviction for possession for sale offense. You can have a lesser charge for possessing a controlled or a prohibited substance if the prosecution cannot prove your intention to sell. You will serve a lesser penalty than the possession for sale charge if convicted for possession only.
Possession of a controlled substance for use as a lesser penalty than possession for sale. Though it is difficult to prove intent to sell in a court, and without your direct confession to having the intent to sell the drugs, the prosecution usually uses circumstantial evidence. The prosecution will bring in experts to testify to establish or prove that you intended to sell the illegal drugs. The role of these experts is to offer their opinion showing that you intended to sell the drugs instead of using them personally.
Some of the things that the prosecution or the police will use as indicators that you intended to sell the drugs include but are not limited to:
● Possession of Measuring Items
If the police find measuring items like weighing scales, dilution tools, and other measuring instruments in your possession will enhance their claim that you intended to sell the drugs.
● The Presence of Packaging Materials
When dealing with possession for sale cases, the police and prosecutors mostly look for the packaging materials of the drugs as this is one of the damaging pieces of evidence they can have against you. Some of the packaging material that could be detrimental in your case include:
With these packaging materials at your disposal, the police will argue that you had the intention to sell rather than use the drugs in your possession.
● The Presence or Absence of Controlled Substance Paraphernalia
It's a crime in California to possess drug or controlled substance paraphernalia under HS 11364. The presence of this paraphernalia may hurt or help your case, and you will therefore require the services of an experienced attorney defending you. Some of these drug paraphernalia include:
- Instruments used to inject
- Instruments for ingesting the drug,
The presence of drug paraphernalia should not worry you, as your attorney could argue that the prohibited drugs were for your use and not for sale.
● Presence of A Lot of Cash in Small Denominations
Once the police arrest you for possession of a controlled substance, the presence of a lot of cash in minor nominations in your person could indicate the sale of the drugs.
This list is not conclusive as facts differ with different cases. All you need when facing possession for sale charges is an attorney who will negate the prosecutors' arguments while they try to prove you intended to sell the controlled substance.
Penalties For possession of a controlled substance For Sale
Under HS 11351, it's a felony to possess a controlled substance for sale in California. Upon conviction, the penalty includes:
- Imprisonment in county jail for a period that ranges from two up to four years
- With probation, imprisonment in county jail that goes up to one year
- Deportation for legal immigrants
- Loss of certain rights like gun rights
- Payments of $20,000 in fines
It's important to note that you may be convicted for various possession for sales charges, and each conviction carries a penalty.
Circumstances That May Earn Sentence Enhancements On Possession of A Controlled Substance For Sale
Under California Health and Safety Code 11351, you may end up facing harsher sentencing when you are convicted for possessing heroin or cocaine-based substances for sale. Your sentence will have additional imprisonment in a county jail that ranges from three up to five years or payment of fines ranging from $20,000 up to $8,000,000. The judge or jury will decide on additional sentences after reviewing the circumstances surrounding your case. For instance, you will have to spend more time in jail, depending on the weight of the controlled substance in your possession.
- Three years are added to your sentence when you possess more than one kilogram of the prohibited substance.
- When you possess more than four kilograms of the controlled substance for sale, you may end up serving five more years.
- You will have an additional ten years to your sentence if you possess more than ten kilograms of the controlled substance for sale.
- For an amount that exceeds 20 kilograms, you will serve an additional 15 years in county jail.
- If you possess more than 40 kilograms of the prohibited substance, you may end up serving an additional 20 years.
- With over 80 kilograms of the controlled substance in your possession for sale, you will be serving an additional 25 years in jail.
It's important to note that your sentence will earn an enhancement if you are convicted in a drug possession for sale case in California and have a history of another drug conviction where you possessed more substance than for personal use. You will face three more years for every felony conviction in your history.
Possible Legal Defenses Against Possession for Sale Charges
When facing possession for sale charges, you and your defense team could come up with various defenses to use to ensure your charge is dismissed or you face a lesser charge. A lesser charge could be a possession, which will lead to less time in jail and allow you to attend a drug program. Since you can't face possession of a controlled substance for sale without possession, your attorney can ensure that you attend a drug program with a lesser charge instead of serving time in jail. Upon completing the drug program, you can have your records dismissed with a lesser charge of possession. This, therefore, makes it crucial to come up with a defense strategy that may lead to your possession of a controlled substance for sale charges dropped. Some of these defenses include and are not limited to:
You Did Not Intend to Sell
Sometimes the prosecution may accuse you of possessing a controlled substance for sale merely on the basis that you had a significant amount. You can use this defense by proving that you had no intention to sell the drugs in your possession but had them for personal use. Though possession of a prohibited substance is an offense, it has a lesser sentence, including a drug program. You can use this defense if you are found to own a prohibited substance, but if you can prove that you did not possess the drugs, the better for you. Your defense team could also try to convince the jury that you possessed the illegal drugs momentarily as you worked out a mechanism to dispose of them.
You Had No Knowledge Of The Controlled Substance
One way in which the prosecution will secure your conviction is if they prove that you knew about the nature of the drugs in your possession. The mere fact that the substance was found in some baggies in your possession doesn't necessarily mean that you were aware that you possessed a controlled substance for sale. You may convince the court that you thought the baggies contained sugar, which could lead to your acquittal. You stand a much better chance at this if it's your first time facing possession of illegal drugs for sale and while you are neither a seller nor a user.
There Was An Illegal Search
If the drugs or the prohibited substance were seized during an illegal search, it could not be used in court as evidence in your case. Hiring a qualified attorney will help you realize how the police may violate search laws in California. For instance, if they have a search warrant for your kitchen, then end up searching the whole house, if they find the drugs in your bedroom, they should not use them in a case against you.
You Were Not In Possession
You can use this defense after the prosecution accuses you of constructive possession. Your defense attorney needs to convince the judge and the jury that you did not possess the controlled substance.
Your legal team could use this defense in the event where you were falsely accused. Sometimes the police may make arrests based on the accounts of witnesses. For instance, they may seize drugs at a warehouse and, based on the description of eyewitnesses of the owner, mistakenly take you in. You can use this defense to have the charges against you dismissed.
Other offenses sometimes may be charged with HS 11351. Though similar, they differ in several ways. Some of these related offenses include:
Possession Of Marijuana For sale
Although California allows the possession of marijuana for recreational use, it is a crime to possess marijuana for sale under HS 11359. Under this code, you can be exempted from facing charges when you:
- Sell medical marijuana according to state laws.
- Sell marijuana to adults aged 21 years and above who have a valid business license to sell.
You may end up facing criminal charges under HS 11359 when you possess marijuana for sale without a valid license.
● Penalties For Possession of Marijuana For Sale In Black Market
In California, it's a misdemeanor offense to possess marijuana for sale in the black market. A conviction could lead to imprisonment in county jail for a maximum of six months or payment of a fine that does not exceed $500. When you possess marijuana for sale without a license, you will face felony charges, especially when you intend to:
- to sell to someone who is a repeat offender of the substance,
- illegally sell marijuana to minors,
- to sell to a sex offender
- sell to someone with a history of violent crimes,
Transportation of Prohibited Substances For Sale HS 11352
Section 11352 of the code makes it illegal to sell, furnish, distribute, transport, or import a controlled substance. This law applies to drugs like heroin, cocaine, LSD, peyote, and prescription drugs like hydrocodone, codeine, and Oxycontin. Under this law, the state prohibits selling controlled drugs, giving them away, transporting them for sale, or administering them. Transporting controlled substances for personal use is not a crime but becomes a crime when you intend to sell them.
● Penalties for Transporting Controlled Substance For Sale
Since it is a felony offense to transport controlled substances for sale, a conviction could lead to imprisonment that ranges from three up to nine years or a fine that does not exceed $20,000. There are, however, some aggravating factors that could lead to sentence enhancements, like selling the controlled substance to minors or transporting vast amounts of the drugs. With the sentence, enhancements come in longer jail terms.
Possession of Controlled Substance Paraphernalia HS 11364
California makes it illegal to possess drug paraphernalia under HS 11364(a). This law applies to paraphernalia, instruments, devices that can unlawfully ingest, inject, consume, or smoke controlled substances. Possession of controlled substance paraphernalia is a misdemeanor offense, and a conviction could lead to six-month imprisonment in county jail payment of fines that do not exceed $1,000. Possession of illegal drug paraphernalia can have long-lasting effects on your career, where your professional license may end up being suspended.
Possession of Illegal Drugs While Armed HS 11370
Under HS Code 11370, it's illegal to possess a controlled substance while armed with an operable gun. possession of illegal drugs while armed is a felony offense, and a conviction could lead to:
- four-year imprisonment,
- payment of fines which does not exceed $10,000,
- loss of gun rights,
Sale of Bunk Or Imitation Drugs- HS 109575 & 11355
California HS code 109575 & 11355 deal with the sale of bunk drugs or imitation controlled substances that are intentionally made to look like genuine substances. Under HS 109575, it is a crime to distribute, manufacture or sell imitation illegal drugs. If you violate this code, you will face misdemeanor charges with a conviction leading to six-month imprisonment in county jail or payment of $1,000 in fines.
HS Code 11355, on the other hand, makes it a crime to transport, offer to distribute, or sell imitation controlled substances. The sale of imitation drugs is a serious crime as the person who consumes them may become addicted to the substances, and they are harmful to the person who uses them. Under HS code 11355, California treats the crime as a wobbler offense where the prosecution could charge you with either a misdemeanor or felony offense.
A conviction will lead to one-year imprisonment in county jail when facing a misdemeanor offense. When charged as a felony offense will lead to county jail imprisonment ranging from 16 months up to three years.
Contact A Criminal Defense Attorney Near Me
After an arrest for possession of a controlled substance for sale, you must seek the services of a skilled criminal defense attorney to defend you. Riverside Criminal Defense Attorney Law Firm is a law firm with experience regarding drug crimes. Our team thoroughly understands illegal drug or controlled substances crimes and is highly effective in defending possession for sale cases. Contact us at 951-946-6366 and schedule your first no-obligation appointment.