When the law enforcement officers find you in the possession of marijuana, there is evidence, statements, or circumstance that may suggest you possessed the drug with the intent to sell it. Even when you had no intent to keep the drug, you might still face charges for possession of marijuana for sale. The crime carries heft penalties, including extensive jail terms and hefty fines.
After the law enforcement officers arrest you over possession of marijuana for sale, you want to seek legal help from an attorney well-versed in California drug crime laws. At Riverside Criminal Defense Attorney Law Firm, our attorneys are highly rated. Our firm consists of aggressive and experienced criminal defense attorneys. Our experience handling drug crimes enables us to assemble various ways to defend your charge, including arranging a plea bargain and affirmative defense.
What Constitutes Possession of Marijuana for Sale (HCS 11359)
Under Health and Safety Code 11359, it is illegal to possess marijuana for sale. When you possess any usable amount of marijuana for sale, the law enforcement officers and the prosecution team conclude you had the drug to sell. So you can face a charge for violating HSC 11359. Before the court convicts you with the crime, the prosecutor must prove the critical elements of the crime, as discussed below. The possession can either be joint, actual, or constructive.
Actual possession means you have direct access, meaning the substance is under your control. For instance, law enforcement officers discover the drug in your pocket or bag. Defending the charge when you have the actual possession of the drug is next to impossible. Actual possession may also apply when you possess the drug a few moments before the law enforcement officers search you.
Constructive possession signifies the law enforcement officers find the drug on a control site and not under your immediate possession. This means you have direct control over where the drug is discovered. However, the prosecutor has difficulty proving the alleged drugs were under your control and that you planned to sell them.
When you and another person or a group of people share actual possession or constructive possession, the law considers you to have joint possession. For example, if the police find marijuana in an apartment you share with your friend or spouse, the law will consider this as a joint possession. But when the law enforcement officers find you sharing the objects used during drug sales, the law will consider the act as actual possession of marijuana.
Elements of a HCS 11359 Violation
You Had the Intent to Sell the Drug
The prosecution team must prove you intended to sell the marijuana. The court cannot find you guilty of possession of marijuana for sale if you just possessed the drug for personal use. To prove your intent, the court will consider the circumstantial evidence. The factors used to prove your intent include how you packed the drug, the presence of drug paraphernalia, the amount of the drug, and whether you had used the drug. When the police officers find packaging backs, ledgers, receipts, weighing scales, and multiple mobile phones, this will prove you wanted to sell the drug.
You Possessed a Controlled Substance
The prosecutor must prove that you were aware federal and state laws controlled the substance you possessed. It's not a must for the prosecutor to prove you knew the substance was marijuana. The court may consider you knew the presence of the controlled substance through the following factors:
- You escaped or tried to hide the substance when the police were approaching you
- You seemed abnormal during your questioning.
Possession of the drug for sale doesn’t just mean holding or touching the drug. The law may apply even when the police find the drug in your car or home. Professional laboratory tests and witness statements will be engaged to prove the drug's chemical composition. As per state and federal law, possession of marijuana for sale may be categorized into three groups.
You Controlled a Large Amount of the Drug
The law considers usable quantities if you possess the legal amount of the drug for personal use. The quantities must be varied from traces and residue since there’s no likelihood of being used in a mode that violates the law. The amount is considered a large amount when it affects the ability of judgment when used.
Federal Law on Possession of Marijuana with an Intent to Sale
The federal controlled act 21 categorizes the drug as a schedule 1 hallucinogenic with a great possibility of being used for other reasons than medicinal value. The law illegalizes possessing marijuana with an intent to sell. Also, the law punishes the first-time offenders having weed weighing below 50kg with a five-year sentence. Again, the offenders pay a fine not exceeding 250,000 dollars.
According to article five of the supremacy clause, federal law has more severe punishments than the state's law. So, you violate both state and federal laws when you possess the weed with the intent to sell it. You want to work closely with your drug attorney to help you fight the charge.
Penalties for Possession of Marijuana for Sale
In the state, you will face a misdemeanor charge when you violate HSC 11359. The penalties for the crime will include at least half a year. Also, you pay a fine of up to $500. After prop 64, however, you might face a felony charge when you meet the following:
- You have a previous conviction for a severe felony like murder, vehicular manslaughter, violent crimes, sex crimes against children, or if you are registered as a sex offender.
- You possessed marijuana for sale, and you aimed to sell the weed to persons below 18 years.
- You have more than two previous convictions for possession of marijuana to sell.
Do You Qualify for a Drug Treatment Program?
When you possess marijuana for sale, you will not be eligible for a drug treatment program. The court only imposes drug treatment programs for the simple possession of weed. So, you might let your attorney convince the court to reduce your charge to simple possession, although the court will consider simple possession of marijuana as a misdemeanor.
You may qualify for a probation program rather than remaining behind bars for an extended period. Once the criminal court judge grants you probation, you will not serve a jail term. Therefore the law will require you to comply with the following terms and conditions:
- Paying a restitution fee.
- Community service/labor.
- Participating in an individual or group therapy.
- Agreeing to a search of your property without a court warrant.
- Submitting to a drug test whenever the law requires you to submit.
Possession of Marijuana for Sale and Immigration
According to the Immigration and Nationality Act, the law considers HSC 11359 an aggravated felony regardless of whether your conviction is under federal or state law. Therefore the penalties for the offenders may include deportation when:
- You are an undocumented immigrant.
- The criminal court finds you guilty of possessing marijuana to sell.
Resentencing Under Prop 64
Proposition 64 was passed in 2016. The proposition provides sentence modification to the offenders with prior marijuana convictions. For instance, you are serving your sentence under the previous version of Health and Safety Code 11359, but you should have faced a sentence for a misdemeanor charge under Prop 64. If this is your situation, the law allows you to send an application seeking the court to reduce your sentence.
The court should reduce your sentence when you meet the requirements for proposition 64 unless the prosecutor attempts to challenge your petition. When the prosecution team contests your request, they must prove you do not meet the basis for resentencing under Prop 64. So, when they cannot do so, the court should modify your sentence unless your resentence will threaten the general public.
Resentencing may result in immediate release depending on your jail term. The same will be applicable once you have served your felony sentence for possessing marijuana for sale. The law allows you to request the court reconsider your sentence and reduce the felony charge to a misdemeanor charge.
You may consider this example: The court finds Peter guilty of possessing Marijuana for sale in 2012, a felony charge. He served his sentence for three years before his release. By the time the court passed Prop 64, Peter had completed his sentence. The court now considers Possessing Marijuana with an intent to sell to offenders like Peter a misdemeanor. Although Peter served the jail term, he may apply to the court requesting the court to reduce the offense to a misdemeanor. The good news is Peters's criminal record will never include a felony conviction anymore.
What are the Legal Defenses for Possession of Marijuana for Sale?
Hiring a defense lawyer when facing accusations of possession of marijuana for sale is essential in forming a solid defense approach. The attorney can use numerous defenses leading to your case being dismissed or reduction of the charge. Working with a lawyer conversant with California laws is highly recommended. The attorney can use the various strong defenses to fight your charges:
Lack of Possession or Control
The prosecutor must prove you possessed the drug intending to sell it. As discussed above, the type of possession may be constructive, actual, or joint. Your criminal defense attorney may argue you did not control or possess the drug. Again, the attorney may present evidence to prove you were not under the control or possession of the drug. Work closely with your attorney to help you increase the chances of winning your case.
Lack of Knowledge
For your conviction to apply, you must have known the substance you possessed was a controlled substance. When you are unaware of the possession and the nature of the crime, you should face charges for illegal possession of the drug. For this defense to work in your case, you should not have a previous drug crime conviction; you should also have accepted to take drug testing with the arresting law enforcement officers. In addition, the prosecutor should prove you were aware of the possession of the drug. When you seem clueless during your arrest, the court may charge you with a less severe charge.
Police Misconduct, Illegal Seizure, and Searches
Under the 4th amendment of the US constitution, the police are prohibited from carrying out illegal seizures and searches. Therefore, this defense can work for your case when the arresting officers fail to present a valid arrest warrant or probable cause during your arrest. For instance, when the law enforcement officers discover the drug in a plain view after stopping you, the evidence is credible.
However, when the police pull you over without probable cause and open the car trunk without your consent, the evidence collected will not be used against you. You want to discuss with your attorney what happened during your arrest. The attorney will gather evidence to challenge the evidence presented against you. The situation is known as police entrapment. The court will either consider dropping your case or reducing the charge.
No Intent to Sell the Drug
To face conviction for possession of marijuana for sale, the prosecutor must demonstrate you had the intent to sell the drug. Remember, the intent is one of the critical elements of the crime. You, however, need to ascertain before the court the amount you possessed was enough for personal use. The court will dismiss or reduce your charges when the prosecutor finds it challenging to prove your intent. Your attorney may also argue you had momentary possession aiming at disposing of the drug.
This defense can work for your case when you have a prescribed or legitimate medicine from the doctor. The prosecutor will have a difficult moment to demonstrate the possession was invalid. Your lawyer may argue you had a valid prescription if you suffered an illness managed by the drug. The defense focuses on how much amount of the drug you had. The defense may fail when the prosecutor insists and proves you were arrested with large amounts than the doctor's medical requirements.
You Possessed the Drug Temporarily
Temporary possession of marijuana may be a valid defense to fight the charge. But you must prove the following elements for the defense to work:
- You held the alleged drug for a momentary or transitory period
- You never obstructed the law enforcement officers from obtaining the drug
- You possessed the drug purposely to dispose of, abandon or destroy the drug
You might have possessed the drug without knowing the drug was illegal. For example, a stranger gives you a package by messenger service which contains marijuana inside, and you are unaware of the content of the drug. Under this situation, the court cannot hold you responsible for possessing the drug for sale. You can also use the defense in constructive possession claims. Your lawyer can use the defense when the police officer finds the drug in your apartment, something you were unaware of.
Other Related Offenses
Alongside HSC 11359, there are other crimes. The crimes are related to the Possession of Marijuana for sale, although they carry different penalties. They include:
1. Simple Possession of Marijuana
Under Health and Safety Code section 11375, simple possession of Marijuana for personal use is a misdemeanor offense. The possession can either be actual, joint, or constructive. First, Actual possession means having immediate physical control of Marijuana. For example, the police may discover the drug in your briefcase, purse, or on your person. You have to note that it is not necessarily that the drugs were on you when the law enforcement officers were searching.
As long as you had possession of the drugs shortly before the police searched, your conduct has the possession elements in PC 11375. Constructive possession is when drugs are discovered in an area you have control of but not on your person. Joint possession of drugs is when you and another person have actual and constructive possession of drugs.
Elements of Simple Possession
To face conviction for possession of Marijuana, the prosecutor must prove the following elements:
The prosecutor must prove you were aware of the presence and nature of the drugs. If you did not know of the drugs or did not know the drugs were Marijuana, you could not face conviction for the crime.
The prosecution must prove the amount you possessed was sufficient to constitute a usable amount. When found with minor traces, you cannot face conviction under section 11357.
Penalties For Simple Possession
The penalties for the crime vary depending on the nature of your case. When you have more than 28.5grams of Marijuana, you face charges for an infraction whereby you pay a fine of $100.
When you are below 18 years and possess less than one ounce of Marijuana while still in school, you face misdemeanor charges. The charges include imprisonment in county jail for ten days and a fine of $500.
When you are under 18 and possess more than 28.5grams of Marijuana on school property, you pay a fine of $250 for the first time conviction and $500 for the second time conviction. Again, a second-time offense attracts ten days of detention in a juvenile facility.
The potential legal defenses you can use to fight the charges include:
Lack of Knowledge
If you were not aware that you possessed Marijuana, you could not face charges. For example, your brother borrows your car and then uses it to pick up Marijuana from a friend. He then hid the bag of Marijuana in the glove compartment of your vehicle. If the law enforcement officers search your car and discover the drugs, you are not guilty of 11357 since you were not aware of the presence of Marijuana in your vehicle.
You possessed Medical Marijuana
Under the healthy and Safety Code 1136.7, California laws authorize the possession of Marijuana for medical purposes. California laws authorize Marijuana patients and caregivers to transport and possess marijuana for their personal use or caregivers for their medical. However, for the defenses to apply, you want to possess the authorized amount for your or your patient's medical needs.
2. Cultivation of Marijuana
HS 11358 covers Marijuana cultivation. Again, prop 64, also known as the adult Marijuana Act allows adults over 21 years to grow between one to six marijuana plants. The adults can grow and harvest the said plants. However, cultivating more than six plants is a crime under California Marijuana laws.
Restrictions for Legal Marijuana Cultivation
There are restrictions you want to obey when cultivating your Marijuana plants. For instance, you want to grow the plant on private land, which is not visible to the public. The limit of six plants applies to every residence and not every person. Therefore, you and your roommate can only grow six marijuana plants. Again, you want to obey all local ordinances relating to Marijuana Cultivation.
The prosecution must prove the following elements for you to face conviction:
- You illegally cultivated marijuana plants.
- You were aware the substance you planted was Marijuana.
Violation of HSC11357 is a misdemeanor offense that attracts the following penalties.
For adults between 18 to 20, cultivating 1-6 plants attracts a fine payment of $100. For adults above 18 years, cultivating more than six plants is a misdemeanor. The crime attracts six months imprisonment and payment of a fine of up to $500. When found cultivating more than six plants, the offense is a wobble. Depending on your case, you can face charges of misdemeanor or felony. The factors that may qualify your Cultivation to be aggravated include conduct involving minors or registered sex workers.
You may use the following legal defenses to fight the charges against you for alleged violation of HSC 11358.
- The marijuana in question is not yours.
- You had the right to plant the Marijuana.
- You did not know the plant in question was Marijuana.
Contact a Criminal Defense Attorney Near Me
Possession of marijuana for sale may attract severe consequences. So, when you face this offense, it is essential to work closely with a drug attorney conversant with California laws. Working with an attorney well-versed in drug crime laws in the state brings the difference between lengthy jail terms and acquittal of your case.
Our attorneys at Riverside Criminal Defense Attorney Law Firm have helped many people facing drug crime charges. Call us at 951-946-6366 and speak with one of our attorneys if the police arrest you over possession of marijuana for sale .