Possession for Sales of Controlled Substance

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Unlike a simple possession charge under H.S. 11350, drug rehabilitation is not available as an alternative sentencing scheme and is not going to be an alternative to jail when you are charged with possession for sale of a controlled substance. If you are convicted of possession for sale, you can be facing prison. If you are arrested for possession for sale of a controlled substance you may be charged with Health and Safety Code Sections 11351 or H.S. 11378 depending on the type of controlled substance you were possessing.

Health and Safety Code Section 11351 states: Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) 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, shall be punished by imprisonment in the state prison for two, three, or four years.

Health and Safety Code Section 11351.5 states: Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment in the state prison for a period of three, four, or five years.

Health and Safety Code Section 11352 states: (a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), 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 for three, four, or five years.

Possession for sale charges are filed as a FELONY. Health and Safety Code Section 11351 carries a maximum incarceration time of 4 years in state prison while Health and Safety Code Section 11378 carries a maximum of 5 years in state prison. Also note that there can be sentence enhancements when large amounts of controlled substances are found.

Health and Safety Code Section 11378 states: Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) 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), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055, shall be punished by imprisonment in the state prison.

When a person is discovered to be in possession of a controlled substance, the investigating officers look for certain factors to determine whether that person had the intent to simply use the drugs (personal use) or the intent to sell those drugs to others (possession for sale). Some of the factors considered to determine intent to sell or distribute the contraband are:

Possession of scales or measuring devices
Possession of plastic baggies or other smaller containers for dividing quantities
Possession of large amounts of cash
Possession of more than one cell phone
Possession of address books or a list of buyers
When a person is suspected of engaging in possession for sale, law enforcement must be able to prove that the person actually intended to sell the drugs before they can charge him/her. Often times, police are able to conclude that a person intended to sell the narcotics in his/her possession if the person is carrying a large amount of the narcotic or if the person is carrying a lot of cash. Law enforcement may also conclude that a person is committing possession for sale if they find the person talking or “dealing” with a third party and witness an exchange of money or drugs.

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.

If you hire the right attorney, your southern California possession of a controlled substance for sales attorney may be able to negotiate a disposition by convincing the District attorney to change your charges to a lesser offense so that you can be eligible for a rehabilitation program rather than custody time.

We have handled many possession for sales cases with highly successful results.

Contact the attorneys who can make a difference in YOUR case at LA Defense Team. If you, a friend or a loved one is charged with possession for sale of controlled substance in Los Angeles County, don’t hesitate, pick up the phone and call our office immediately, your call is FREE!