Possession for Personal Use Charges
Possession of a Controlled Substance in Southern California
Our attorneys have experience in negotiating all forms of alternative sentencing such as house arrest and diversionary programs. If you are being charged with possession of a controlled substance, you need and attorney who has established relationships with local Judges and District Attorneys which help in negotiating your alternative sentencing options. Our attorneys can help in that regard.
Our office has a history of successfully handling the defense of clients charged with ALL types of drug charges under the Controlled Substance Act and we have a history of successful representation which has saved many nonviolent drug offenders from spending lots of time in jail.
The Controlled Substance Act is a consolidation of laws that regulate the possession, manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and chemicals used in the illicit production of controlled substances or illegal drugs.
The Act breaks down narcotics into 5 different categories or “schedules”, the most serious being “Schedule 1” offenses.
Some examples of “Schedule 1” narcotics are: Some examples of “Schedule 2” narcotics are:
Some Examples of “Schedule 3” narcotics are:
Hashish
Heroin
Methaqualone
PCP
LSD
Cocaine
Methamphetamine
Codeine
Opium
Oxycodone
Barbiturates
Ketamine
Anabolic Steroids
Morphine (injected)
Codeine
If you are arrested for possession of a controlled substance you may be charged with Health and Safety Code Sections 11350 or 11377 depending on what type of controlled substance you have.
Health and Safety Code Section 11350 states “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 in the state prison.
Notably, while these charges usually concern “street drugs” like Cocaine and Methamphetamine they can also apply to substances commonly thought of as medications.
Health and Safety Code Section 11377 states in pertinent part “every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3)specified in paragraph (11) of subdivision (c) of Section 11056, (4)specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year or in the state prison.
Health and Safety Code Sections 11350 (H.S. 11350) and H.S. 11377 can be filed as a misdemeanor or a felony. The maximum sentence as a misdemeanor is 1 year in county jail while the maximum sentence for a felony is three years in state prison.
If you are found in actual possession of the drug or “constructive” possession of the drug you may be found guilty of the offense. Constructive possession means that the drug may not be on your person but you knowingly exercise control over or the right to control the drug, either directly or through another person or persons. In order for the prosecution to prove its case they must show that the person knew the substance was a controlled substance and that there was enough of the drug to constitute a usable amount. The elements of these offenses are as follows:
A person exercised control over or the right to control an amount of the drug;
That the person knew of its presence;
That person knew of its nature as a controlled substance; and
The substance was in an amount sufficient to be used as a controlled substance.
Often times when the controlled substance is found under the seat of a vehicle the prosecutor will argue that the driver/owner of the vehicle must have known of the presence of the substance simply because they are the owner/driver of the vehicle and even though there were other people in the car. However, a skillful attorney can counter that argument by explaining to the court or the jury if necessary, how easy it is for a passenger to stash a controlled substance under the seat of a vehicle without the driver/owner being aware.
The first thing every good criminal defense attorney should do in a case involving controlled substances is to look and see whether the way in which the police realized the Defendant possessed the substance was legal under the 4th amendment. This area of criminal law is called “search and seizure” and it is very important to consider this aspect of every controlled substance case. For example, if the substance was found on the Defendant while he was driving, was he/she legally stopped by the police officer? Did the stop occur because of a legitimate traffic infraction or was it because of the Defendant’s race? Or was the stop because the officer had a hunch since the Defendant seemed out of place in that particular neighborhood? If the reason for the stop/detention of the Defendant was not legal under the fourth amendment then a good criminal defense attorney can move to suppress the evidence because of the 4th amendment violation under Penal Code Section 1538.5. If the court grants this motion then the case can be DISMISSED. Thus it is very important for the attorney to explore this aspect of the case with the client.
P.C. 1000
First time drug offenders with no criminal history may be eligible for consideration under Penal Code Section 1000 (also known as “PC 1000”). This law permits first time drug offenders who possess drugs for personal use (possession for sales are not eligible) to attend a Drug diversion program. It allows the accused to attend a 4 month drug program, to avoid going to jail, and upon successful completion of the program to get the case DISMISSED if they remain free of any new arrests or convictions for a period of 18 months. This is an ideal way for the first time offender to keep his/her record clean.
Our attorneys have successfully negotiated many cases with the charges ultimately DISMISSED because we have been able to get our clients into P.C. 1000 class.
Prop 36 or P.C 1210
Under Prop 36, offenders with more then one drug possession conviction are allowed to attend a more vigorous program under Penal Code Section 1210 with the result that the person accused avoids jail and gets the matter DISMISSED. However, as opposed to Penal Code Section 1000 discussed above there are many more concerns with regard to eligibility of the Defendant for this program. You should consult our office immediately to see if you are eligible for this program. Prop. 36 is usually at least 1-year long and often times much longer with a very intense curriculum and frequent court appearances. The Court retains jurisdiction over the accused to monitor the Defendant’s progress. Generally, upon successful completion of Prop 36 and 3-years without criminal problems the Court will DISMISS the case.
Penal Code 1210.1 states: (a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. Probation shall be imposed by suspending the imposition of sentence. No person shall be denied the opportunity to benefit from the provisions of the Substance Abuse and Crime Prevention Act of 2000 based solely upon evidence of a co-occurring psychiatric or developmental disorder. To the greatest extent possible, any person who is convicted of, and placed on probation pursuant to this section for a nonviolent drug possession offense shall be monitored by the court through the use of a dedicated court calendar and the incorporation of a collaborative court model of oversight that includes close collaboration with treatment providers and probation, drug testing commensurate with treatment needs, and supervision of progress through review hearings. In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program.
(b) Subdivision (a) shall not apply to any of the following: (1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person. (2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony. (3) Any defendant who, while armed with a deadly weapon, with the intent to use the same as a deadly weapon, unlawfully possesses or is under the influence of any controlled substance identified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code. (4) Any defendant who refuses drug treatment as a condition of probation. (5) Any defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210. Notwithstanding any other provision of law, the trial court shall sentence that defendant to 30 days in jail.
Forging a prescription
Health and Safety Code Section 11368 states: Every person who forges or alters a prescription or who issues or utters an altered prescription, or who issues or utters a prescription bearing a forged or fictitious signature for any narcotic drug, or who obtains any narcotic drug by any forged, fictitious, or altered prescription, or who has in possession any narcotic drug secured by a forged, fictitious, or altered prescription, shall be punished by imprisonment in the county jail for not less than six months nor more than one year, or in the state prison.
Please note that if a person is accused of forging a prescription for medication (H.S. 11368), a skillful attorney can convince the District Attorney to allow the person to attend the P.C. 1000 program and upon successful completion, to earn a dismissal of the charges.
It is also possible to negotiate with the District Attorney to change a charge of Business and Professions Code Section 4324 (B&P 4324) to a charge of Health and Safety Code 11368 so that the accused person can attend the Penal Code 1000 program and earn a Dismissal.
Business and Professions Code Section 4324 states: Every person who signs the name of another, or of a fictitious person, or falsely makes, alters, forges, utters, publishes, passes, or attempts to pass, as genuine, any prescription for any drugs is guilty of forgery and upon conviction thereof shall be punished by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.
The right criminal defense attorney may be able to reduce the penalties or even have the case dismissed by:
Have the evidence against you thrown out of court. If an illegal method was used by law enforcement personnel to carry out the search of your property, any evidence obtained cannot be used in court.
For first time offenders, the right attorney can get you an alternative sentencing such as diversion program, special drug court or, Prop 36 to earn a Dismissal.
Drug court is another alternative to jail for drug-addicted repeat offenders. It is handled by a special court in close connection with department of Probation and the Health department. The court will use a combination of steps geared towards rehabilitating the defendant. Each phase must be successfully completed before you can be eligible to enter the next phase. Although longer, more rigorous and harder than Prop 36 or P.C. 1000 programs, Drug court can also get you a dismissal if you successfully complete all phases of the rehabilitation process.
