Introduction

Drug possession convictions can mar your record and impact more than just your freedom.  Your employment, housing, property, immigration status, acquiring financial aid, business loans, child custody as well as other areas of your life can also be impacted.

A felony conviction carries not only draconian penalties including loss of gun and voting rights, but also the stigma of being a convicted felon.

Even a misdemeanor conviction can carry severe consequences.  If you’re a minor, you may lose your license for up to 3 years if a vehicle was involved in, or incidental to the commission of the crime.

Fortunately, our judicial system grants you the right to counsel.  You can opt to hire the drug possession lawyer you choose, or have one appointed to you by the court.  If you’re searching for a drug possession lawyer who understands the stress you’re going through, who has time to go over the details, and who will fight your case with the same degree of care he would fight his or her own case, you’ve come to the right place.

The initial consultation is free, give us a call today to discuss your case, what defenses you may have, and how we can help make your life a little less stressful.

The Statute(s)

Drug possession crimes are codified in the Health & Safety Codes. Commonly charged offenses include:

Health & Safety Code 11350

The following statute applies to possession of prescription drugs and other illegal drugs.

  1. a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

The Elements

Health & Safety Code 11350 – Possession of a Controlled Substance

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant [unlawfully] possessed a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance’s nature or character as a controlled substance;

 

4A. The controlled substance was ;

4B. The controlled substance was an analog of AND

  1. The controlled substance was in a usable amount.

In order to prove that the defendant is guilty of this crime, the People must prove that is an analog of . An analog of a controlled substance:

  1. Has a chemical structure substantially similar to the structure of a controlled substance; OR
  2. Has, 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. (CALCRIM No. 2304)

The prosecutor must prove you possessed the controlled substance.  This doesn’t necessarily mean that you had to have the drugs on you, but you at least had to be in control or have a right to control the drugs.  Merely being in a place where drugs are located may not be enough to establish possession under the law.

Knowing of the drug’s presence is also required.  If for example a person borrows a friend’s car and gets pulled over.  Then during a search of the vehicle, the cops find prescription pills in the vehicle, if the person can successfully argue s/he was unaware of the presence of those pills, s/he may have a good defense.

Another requirement for a person to be convicted of the crime of drug possession is that the drugs must be in a usable amount.  A useable 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. (CALCRIM No. 2304)

Penalties

Simple possession of a controlled substance is ordinarily charged as a misdemeanor punishable by up to one year in jail and a $1,000.00 fine.  However, your criminal history may result in the prosecutor charging the offense as a felony.  Drug diversion is usually available, wherein a person completes a drug program and the charges are dismissed.

Defenses

There are many defenses to drug possession charges a skilled drug possession lawyer will explore.  The following are some of the common defenses to drug possession charges: 

  1. If the drugs were found during an illegal search
  2. If the drugs were found during an illegal stop of your vehicle
  3. If the amount founds was not a “useable” quantity
  4. If you did not actually possess the drugs
  5. If you didn’t know you had the drugs or didn’t know what you had were drugs
  6. Other constitutional violations by the police
  7. If what was found was a prescription drug and you had a valid prescription

You possessed the drugs only for the purpose of turning them over to the police.

Miscellaneous Information

As stated above, drug possession defendants may be eligible for one or more types of drug diversion programs.  Counties offer different programs, including diversion under Penal Code 1000, Prop 36, and other “drug courts.”  A local drug possession lawyer will best assist you in assessing your eligibility for these programs.

The courts will allow eligible persons to undergo treatment in lieu of punishment, and upon successfully completing the drug rehabilitation program the court dismisses the charges.  Frequent drug testing is one aspect of many of these programs, and while the court expects the person to have relapses, if the court feels the person is not taking the treatment seriously, or cannot comply with the program’s demands, the judge may accept a guilty plea and sentence the person to the original sentence it would have imposed.  If the person finds it impossible to comply with the program demands, the person may terminate and demand jail.

What You Should Do

Drug possession charges can mean the loss of many benefits, and can leave a scar on your record.  Speaking with a drug possession lawyer to find out your options is the first step to making sure you do everything you can to keep a drug conviction off your record.  Drug possession lawyer Matthew Luzaich provides free consultations with prospective clients to discuss their charges, the facts of their cases and possible defenses.  Call today for a free initial legal consultation.

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