California Health and Safety Code 11350(a)
Facing criminal charges for drug possession under California Health and Safety Code §11350(a) presents serious challenges that require serious attention to building a strong defense. To protect your rights, it is of the utmost importance to be familiar with your legal rights and options. A skilled lawyer at The Law Offices of Daniel E. Kann can help answer your questions, assist you in the legal process, and fight your case. While the information below covers some of the basics about this crime, including, the definition of the charge, punishments and defenses, seeking more information by talking to a lawyer is often very beneficial. Get in touch with Daniel E. Kann today to discuss the specifics of your case.
The prosecutor will be working to prove that you violated California Health and Safety Code §11350(a) by "possessing" a "controlled substance," and that there was a "usable amount" of the controlled substance. The terms "possessing," "controlled substances," and "usable amount" as well as additional information such as punishment and defenses are discussed in more detail below.
Controlled Substances: What Qualifies?
According to California Health and Safety Code §11054 &110552 & 11056, a "controlled substance" can include a wide range of drugs, including, but not limited to the following:
Possession of What Controlled are Subject to Prosecution Under Health and Safety Code 11350?
It is important to note that the specific controlled substances that are subject to prosecution under California Health and Safety Code 11350 include:
- Certain Hallucinogenics, and
- Gamma Hydroxy-butyric acid (GHB)
An individual can also face drug possession charges for prescription medications. Some of these include morphine, codeine, and hydrocodone. If these or other prescription drugs are believed to be used in manners or dosages other than prescribed or if they are possessed without a prescription, drug possession charges may be filed.
What is Possession?
The prosecutor, who has the burden of proof in your case, will try to demonstrate that you "possessed" the controlled substance. Possession can be defined in three ways.
Actual possession can often be demonstrated when the police have found a controlled substance on your person such as in your pocket or a body cavity.
Constructive possession can often be demonstrated when a controlled substance is found in an area or item that you had some control over such as luggage that you checked onto an airplane or a closet in your bedroom.
Joint possession is often established when it can be shown that you and another person both possessed a controlled substance such as where one is sharing a pipe filled with cocaine base or "crack cocaine" with another.
Some important factors to consider with regard to possession are that the prosecutor must demonstrate that to you intended to possess the drug; that your drug possession was not forced upon you or unknown to you, that you knew that what you possessed was a controlled substance, and that the possession was voluntary.
If you were threatened into possessing the drugs or if you had no knowledge that the drugs were in your possession, the charges may be dismissed. Charges may also be dismissed if evidence was gathered unlawfully or if your attorney can negotiate a disposition with the prosecutor and judge that would entail a dismissal.
What is Usable Amount?
A usable amount of a drug for the purposes of prosecution and conviction means an amount sufficient enough such that it can be used as a drug. Therefore, mere residue or scrapings of base cocaine from the inside of a pipe or an infinitesimal amount of heroin detected within a piece of cotton or a syringe will often not be enough for the prosecution to achieve a conviction and the case will have to be dismissed.
Punishment for Drug Possession under California Health and Safety Code 11350 hs
A person convicted under Health and Safety Code 11350 may face the following consequences:
- County Jail followed by Probation
- State Prison followed by Parole
A conviction under Health and Safety Code 11350 is punishable as a felony and carries up to one year in county jail followed by probation or 16 months, 2 years, or 3 years in state prison followed by parole.
In rare instances, this charge can be a wobbler meaning that it can be charged as a misdemeanor or felony or it can be reduced by a judge to a misdemeanor. However, under the most common circumstances such as when one is charged with this crime for possession of cocaine or heroin, Health and Safety Code 11350 is not a wobbler and can only be charged as a felony and cannot be reduced to a misdemeanor.
Sentencing under Penal Code Section 1170(h)
Under California Penal Code Section 1170(h), also known as Realignment, most people who are sentenced to prison for a conviction under this charge can serve out their prison sentence in local county jail as opposed to prison as long as they have no serious or violent prior convictions such as those convictions that fall under California Three Strikes Laws. Please see our page on this website for more information on California Three Strikes Laws.
Drug Cases We Handle:
- Drug Diversion/Prop. 36
- Drug Manufacturing
- Drug Possession/Possession of a Controlled Substance (HS 11350)
- Drug Sales/Transportation (HS11352)
- DUI/Drugs (VC 23152(a))
- Felony Drug Charges
- Marijuana Cultivation (HS 11358)
- Marijuana Sales (HS 11360)
- Medical Marijuana/Compassionate Use Act (HS 11362.5)
- Misdemeanor Drug Charges
- Possession for Sale (HS11351)
- Possession of Cocaine
- Possession of Ecstasy
- Possession of Heroin
- Possession of Marijuana (HS 11357)
- Possession of Meth (HS11377)
- Possession of Paraphernalia (HS11364)
- Under the Influence (PC 11550)
Most people charged with felony Possession of Narcotics under 11350 hs will be eligible for drug diversion or drug court as an alternative to jail or prison. In California, drug diversion falls under two main categories. These are known as PC-1000, also known as Deferred Entry of Judgment or DEJ for short and Prop. 36 probation.
PC-1000: PC-1000 probation is available to people who have not been convicted of a drug related offense in the past or who have participated in and successfully completed the PC-1000 program not less than five years prior. Under PC-1000 or DEJ, one is required to enter an initial plea of guilty and take part in a structured five month drug education program. If after a total of 18 months no new crimes have been committed the person may come back to court, withdraw their plea of guilty and have the charge dismissed.
Prop. 36: Prop. 36 probation named for Proposition 36 voted into law by California voters and formally named the Substance Abuse and Crime Prevention Act of 2000 is available to most people charged with 11350 hs. It is considered formal felony probation, however if completed successfully, the charge will be dismissed once probation terminates which is usually after about three years. The probation department will determine what level of treatment you should receive based on their initial evaluation. This can range from out-patient meetings and classes to residential treatment. The level of treatment often fluctuates throughout the probation period depending on the person's progress. Unlike PC-1000, Prop. 36 probation is available to those who have been convicted of drug related offenses in the past. Those who are not eligible for Prop. 36 probation include those who are charged with non-drug related offenses along with violating Health and Safety Code 11350 and those who have suffered prior serious or violent conviction under California's Three Strikes Laws.
Please see our Drug Diversion page on this website for more information about California drug diversion and how our drug diversion attorneys can help you.
Related and More Serious Charges (Sales and Transportation)
Charges related to 11350 hs simple possession of narcotics include Sales and Transportation charges:
Health and Safety Code Section 11352, Sales and Transportation of Narcotics:
This charge carries a penalty of up to one year of county jail or 3 years, 4 years, or 6 years in State Prison. People convicted of this charge are not eligible for diversion.
Health and Safety Code Section 11378, Possession of a Controlled Substance for Sales:
This charge carries a penalty of up to one year of county jail or 16 months, 2 years, or 3 years in State Prison. People convicted of this charge are not eligible for diversion.
Health and Safety Code Section 11379, Sales and Transportation of a Controlled Substance:
This charge carries a penalty of up to one year of county jail or 2 years, 3 years, or 4 years in State Prison. People convicted of this charge are not eligible for diversion.
The life altering consequences that a person charged with drug possession is up against depends on the type and amount of drug or controlled substance he or she is accused of having in his or her possession and whether or not there is intent to transport and/or sell. When law enforcement or the prosecution believe that the amount of drugs a person is accused of possessing is greater than an amount that would be used for personal use, often times one of the above mentioned sales or transportation charges will be imposed. Other factors that are considered aside from the quantity of drugs found, include whether the person possessed scales for weighing drugs, whether the drugs were separated into smaller portions in baggies or other containers such as "bindles," and whether large amounts of cash were found.
Affirmative Defenses to the Charge of Possession of a Controlled Substance
The good news is that there are several affirmative defenses to a charge of Possession of a Controlled Substance under Health and Safety Code 11350. These defenses include:
- Did not Possess the Drug: If it cannot be proven that you had actual or constructive possession of the drug than you have a valid defense to a charge of violating HS 11350.
- Didn't "Know" that you "Possessed" the drug: As stated earlier, if you didn't know that you were in possession of the drug or you didn't know that what you were in possession of was in fact an illegal narcotic or controlled substance than you have an affirmative defense to the charge of drug possession.
- You were only in "Transient" Possession: If you only possessed the drugs for the purposes of handing it over to law enforcement or disposing of it, and you were never in possession of it for the purpose of using, transporting, or selling it than you have a valid defense to the charge. An example of transient possession would be:
Joe is walking down the street. He sees what appears to be a baggie of white powder in the bushes. Joe picks it up and upon closer inspection realizes that it is probable an illegal drug. Joe decides that he will walk to a nearby police station to turn it in.
- Valid Prescription: If you have a valid prescription for a legally proscribed drug and you are using and possessing the drug within the scope of the prescription than you cannot be convicted of 11350 hs.
- Illegal Search and Seizure: Where drugs are located and seized in violation of one's Constitutional Fourth Amendment Right to Privacy, than a motion to suppress the evidence can be filed arguing that the evidence should be suppressed and the case should be dismissed. Illegal search and seizures arise when drugs are found pursuant to a search and/or detention and there is no search warrant (or the warrant is invalid or improperly executed), or where there is no reasonable suspicion or probable cause to conduct the search in the first place. Please see our webpage on this website for more information on illegal search and seizure and how our California search and seizure attorneys can assist you with your case.
Aggressive Legal Representation
Whether you or someone you care about is facing charges for drug possession, it is important to act fast in getting aggressive legal representation on your side. To learn more about what can be done to defend your rights, contact Daniel E. Kann for a free consultation by calling (888) 744-7730 or filling out a contact form.