While California has tried to advance towards the treatment and rehabilitation of drug users caught unlawfully possessing narcotics instead of punishment, drug sale is still a severe crime. You can be charged with possession with intent to sell if you’re found having a substantial quantity of a controlled substance. However, we have several reasons why an individual can be found with a more than own-use drug quantity. It doesn’t necessarily imply they intended to sell it. Plus, when law enforcement officers arrest you for possession with intent, you may not have even known the substance was present.
Being arrested for controlled substance possession with the intent to sell isn’t the same as a conviction. Even when the prosecution makes it appear as though there aren’t any other options but to enter a guilty plea, you have the right to contest the charges against you to avoid a prison sentence and have a felony charge off your criminal record. Talk to experienced lawyers from The Los Angeles Criminal Defense Attorney about keeping your criminal record clean, and let them legally represent you in your case.
Overview of the Crime of Drug Possession for Sale
California’s Health and Safety Code (HSC) 11351 is among the many laws that forbid the illegal distribution or sale of controlled substances. Purchasing or possessing particular regulated substances intending to sell will subject you to charges under this law. Controlled substances refer to chemicals or drugs whose use, possession, and manufacture is managed by the government.
Examples of controlled substances regulated under HSC 11351 include but aren’t limited to heroin, LSD, cocaine, peyote, opiates & opiate derivatives, GHB, and specific hallucinogenic substances.
This statute also makes it illegal to purchase or possess specific prescription drugs intending to sell. They include but aren’t limited to hydrocodone, codeine, and oxycodone.
Elements of the Crime
Before the judge can find you guilty of violating HSC 11351, the prosecution has to prove beyond any reasonable doubt that you:
-
Purchased or possessed the drug
-
Knew you were in its possession
-
Were aware the drug was a regulated substance
-
Had adequate amounts of the regulated substance to sell
-
Either had the narcotics with the intention to sell or purchased it intending to resell it
Let us look at the different terms used to define the above elements to understand their legal meaning.
Meaning of Possession
Under this law, possession means control. And control, in this case, can be actual/physical, joint, or constructive.
Physical/actual possession is the easiest to identify and define. For instance, if the controlled drug was on you, maybe in your pocket, or the briefcase/backpack you had with you, you will be considered to have had actual possession.
It’s quite challenging to identify constructive possession. Having constructive possession of a drug means you can access it or have a right to its control even though you do not have it on your person. Generally, this kind of control is established by circumstantial proof, i.e., evidence that does not directly show that one is guilty.
Joint possession is a case where more than one person possesses the drug in question.
The knowledge that You Had the Controlled Substance
The prosecutor has to demonstrate that you were aware you had the illegal drug, which you also knew was a regulated substance.
-
Knowledge of Possession
It wouldn’t be fair to hold a person responsible for possessing a drug with intent to sell if they weren’t aware the substance was in their possession. This implies that, for example, if you had borrowed your friend’s auto and the police found drugs in its trunk, you should not be criminally accountable if you did not know the drugs were there.
Likewise, suppose your friend hid their narcotics in your house without telling/asking you, maybe since they knew law enforcement officers were about to obtain a search warrant to their home. Here, you are not guilty under HSC 11351 unless you were aware of this situation and agreed to it.
-
Knowledge That it is a Regulated Substance
For you to be convicted under HSC 11351, you don’t need to have known the drug’s name, its chemical composition, or its anticipated effects. All that matters is you were aware that the drug is a regulated substance.
However, note that as concerns knowledge, the jury/judge may deduce that these two elements (i & ii) have been met by the mere fact that you had the narcotics. Knowledge can also be presumed depending on your behavior after the narcotics have been discovered.
There was Adequate Drug Amount to Sell/Use
Useless drug residue or traces won’t justify a conviction under HSC 11351. The controlled substance’s quantity must be sufficient that the person buying it can, in the real sense, actually ingest or use it as a narcotic. However, there doesn’t need to be an adequate quantity of the drug to impact the user.
Intention to Sell
Usually, the essential element that the prosecution needs to prove for a conviction to occur is whether you had the drug for sale. However, this does not mean you ought to have had the aim to sell the drug personally. Even if you specifically intended for another person to sell it, you could be found guilty of this crime.
If the prosecution shows that you had the narcotic but can’t demonstrate your intention to sell, the jury/judge could rule that you are guilty of a reduced crime of simple possession under HSC 11350. This difference is critical since a conviction of simple possession not only leads to lenient punishments but also presents the likelihood of participation in a drug diversion treatment program instead of a jail/prison sentence.
Possession for Own Use vs for Sale
Since the question of whether you had the drug for sale or personal use is so critical to charges of drug possession, we are going to look at the differences between the two. None of these offenses necessary requires that one actually transports or sells a controlled substance. The crime of transportation and sale of regulated drugs is described under HSC 11352. Consequently, these possession crimes revolve around the defendant’s intent.
Proving intent is challenging. In the absence of a voluntary and explicit confession from the defendant, one’s intention is typically something that’ll have to be established by circumstantial proof, i.e., the circumstances surrounding a case.
Prosecutors and law enforcement usually rely on several factors when establishing intent under this law. Generally, the prosecutor will seek an expert witness (controlled substances officer) to testify that the defendant intended to sell the narcotics and not to use them based on the factors.
Factors that Differentiate Possession for Sale from for Own Use
Even though the elements we are about to discuss do not necessarily apply to every drug possession case, they’re usually used to differentiate between these two forms of charges.
-
Drug Packaging
Often, how the narcotic was packaged is the most detrimental proof in cases of possession for sale. If the drug was packaged in several separate balloons, baggies, bindles, bundles, or any other ways associated with selling drugs, the police would assume that this kind of packaging indicates the narcotic was possessed with intent to sell instead of personal use. Likewise, if the police caught you with plenty of baggies, balloons, or any other wrapping king material, they would suspect your intention to sell.
-
Controlled Substance’s Quantity
If you had more narcotics than the amount an average individual would ingest, law enforcement/prosecutor would assume you intended to sell them. The error in this presumption is that habitual drug users will mostly stock up if they have the means of doing so. Thus, unless you are running a money-making operation from a warehouse, possessing a significant quantity of a narcotic isn’t in itself proof of possession to sell.
-
Absence/Presence of Drug Paraphernalia
Having drug paraphernalia, an offense in itself under HSC 11364, could either hurt or help your case. Paraphernalia includes syringes, pipes, and other instruments used to inject, ingest, or take a narcotic. Since paraphernalia mostly indicates use, having it may support your argument that the controlled substance was for own use. But if law enforcement found that you had items like measuring instruments, weighing scales, or other pieces of equipment that can be used for packaging, separating, or diluting drugs, the discovery would strengthen the prosecution’s argument that you had the narcotics for sale.
-
You’re Intoxicated
If, when they arrested you, the police found that you were intoxicated with drugs, this fact would tend to indicate possession for use instead of intention to sell. But most users are also dealers; thus, this evidence isn’t conclusive.
Note that if you’re intoxicated in any measurable manner, you could face an additional charge under HSC 11550. A conviction of this misdemeanor offense will subject you to a potential jail sentence. However, if you are eligible, you can enroll in a drug diversion program in lieu of jail time, but only if your lawyer can make your possession to sell charge lowered to simple possession.
Also, remember that several other aspects are inconsistent with or indicative of the intention to sell, based on the case’s precise facts. The ones we have mentioned are just a few of the many common arguments that defense attorneys and prosecutors rely on when trying to negate or prove that you intended to sell a controlled substance.
Penalties for Possession for Sale of a Controlled Substance
If you violate HSC 11351, you will face felony charges. And if you are found guilty, your punishment will include up to $20,000 in fines and four, three, or two years in prison or probation and a maximum of one year in jail.
If the D.A can establish that you had the intent to participate in numerous sales, the penalties may be imposed in relation to every intended sale. Additionally, a conviction of this crime could result in deportation if you’re a legal alien.
Aggravating Circumstances
If you’re found guilty of purchasing or possessing cocaine base with intent to sell, you will face five, four, three years in prison and a fine not exceeding $20,000. Additionally, if you’re found guilty of violating HSC 11351, and the illegal drug is cocaine, cocaine base, or heroin, you will be subject to an additional & consecutive:
-
Three years if the drug is more than one kilogram
-
Five years if it’s over four kilograms
-
Ten years if the narcotic exceeds 10kg
-
Fifteen years if it’s over 20kg
-
Twenty years if it’s over 40kg
-
25 years if it’s more than 80kg
If you’re sentenced to an additional time under any of the weight enhancements we provided above, you will also be subject to a maximum fine of eight million dollars.
And suppose you’re convicted under this law and have, at the minimum, one past felony conviction for another drug offense that involves much than own use. In this case, you will be subject to an additional & consecutive three years for every previous felony sentence.
Drug Diversion
Drug diversion is permissible under PC 1000, Proposition 36, and drug court. It allows individuals that have committed particular non-violent substance possession crimes to be sentenced to drug treatment programs instead of prison or jail. Drug diversion has one main advantage: if you complete the treatment program successfully, your drug charges are likely to be dropped.
But drug diversion isn’t offered to every offender and has several other restrictions. One of the limitations is it does not apply to offenses to do with the sale of controlled substances. That’s why your attorney must try to have your possession for sale charges reduced to simple possession.
However, since you can possess a drug with intent to sell without necessarily having it, possession for own use is a lesser included crime of HSC 11351. Consequently, even if you are charged with possession with intent to sell, a jury/judge could instead opt to convict you of HSC 11350, simple possession. If you’re convicted under HSC 11350, you may qualify to enroll in a drug diversion treatment program.
Legal Defenses to HSC 11351 Charges
We have many valid defenses to purchasing or possessing a regulated substance intending to sell that an experienced drug crimes attorney can argue in court for you. We are going to provide a summary of the most common.
You Didn’t Intend to Sell the Drugs
Even if the prosecution can prove you had the controlled substance, you might not have possessed them for sale. If your lawyer can demonstrate that you had the drugs only for own use and not for sale, you shouldn’t be convicted under HSC 11351.
And, whereas it may appear as though it’s unreasonable to admit that you indeed possessed the drug for personal use, simple possession is deemed a lesser offense and might allow you to enroll in a drug diversion program.
If your lawyer can successfully contest the element of possession in the first place, then you wouldn’t have to present this defense. But if the proof that you had regulated substances is overpowering, this is possibly the best way out.
Illegal Search or Seizure
There are several ways in which law enforcement can breach the search & seizure statutes. The illegal search or seizure defense can be argued if:
-
The search was conducted without a valid warrant.
-
The search exceeded the limit of the search warrant, for instance, in a situation where the warrant only authorized a bedroom search, but the police searched the entire house and found the illegal substance in the kitchen drawer.
-
It was an unlawful arrest. If the law enforcement officers were not supposed to pull you over, to begin with, then any drug they find won’t probably be admissible as proof against you.
Therefore, if your attorney suspects that you’re a victim of an unlawful search & seizure, they will likely bring a PC 1538.5 motion to suppress. If the motion is successful, your charges will possibly be dropped or significantly reduced.
You Didn’t Possess the Drugs
If your defense lawyer can persuade the prosecution and jury/judge that you did not even have the narcotics, you may be acquitted. This legal defense would best apply to charges claiming constructive possession.
Momentary Possession
Brief possession of an illegal drug for legal purposes could be a valid defense to HSC 11351 charges. For your attorney to affirm this defense, they must establish that:
-
You had the narcotic for only a transitory or momentary period
-
You had the drug because you wanted to destroy or dispose of it
-
You didn’t intend to prevent the police from finding the drug
To succeed in arguing this defense, your lawyer must demonstrate all these factors by a preponderance of the evidence. By this, it means they have to show that it’s more likely than not that all of the above elements are true. A preponderance of the evidence is a lesser burden of proof compared to beyond a reasonable doubt.
Absence of Knowledge
If the prosecution cannot show that you were aware of the controlled substance’s presence or its character, you cannot be found guilty under HSC 11351. The belief that heroin is PCP isn’t a legal defense. But the belief that heroin packaged in baggies was sugar could be.
The defense of a lack of knowledge works best with defendants that do not have any criminal record of a previous drug experience. In this case, the defendant can effectively convince the jury/judge that they indeed weren’t aware that the drug was a regulated substance, unlike in the case of a known dealer or user trying to argue this same defense.
Related Offenses to the Crime of Drug Possession for Sale
Several offenses are closely related to HSC 11351. A few of them involve similar behavior, while others are generally charged instead of or in connection with HSC 11351. These crimes include, but aren’t limited to:
HSC 11352, Sale & Transportation of Illegal Drugs
The HSC 11352 statute involves the selling of the same substances prohibited under HSC 11351. The distinction between HSC 11352 and 11351 is that HSC 11352 involves the actual sale of drugs, unlike possession to sell.
HSC 11352 is a felony. If you are found guilty, you will face five, four, or three years in prison, and nine, six, or three years if you move the narcotics across three or more county lines.
Also, since this crime involves sales instead of simple possession, a drug diversion program isn’t an option, unless your lawyer can have your charges reduced to personal possession.
HSC 11377, 11378, & 11379, Possession, Sale and Transportation of Methamphetamines
HSC 11377, methamphetamines possession, HSC 11378, methamphetamines possession with intent to sell, and HSC 11379 methamphetamines sale/transport, are similar to HSC 11350, 11351, & 11352, with one significant difference.
The distinction is that these statutes control slightly less serious substances. And whereas methamphetamines (meth) are possibly the most known narcotics charged under these laws, several other drugs are regulated under the laws too. Examples of these are GHB, PCP, ecstasy, ketamine, and particular anabolic steroids.
HSC 11377 is a wobbler. This means the prosecution can charge you with either a felony or a misdemeanor. However, HSC 11379 and 11378 are felonies, which, if convicted, you will face up to nine years in prison.
Where possession of specific drugs like GHB is forbidden under several laws, it’s up to the DA to choose under which law to prosecute you.
HSC 11359, Marijuana Possession for Sale
According to HSC 11359, it’s a felony offense to possess pot if you aim to sell it. Marijuana possession for sale is punishable by three or two years, or sixteen months in prison and a maximum fine of $10,000.
Contact a Drug Crimes Criminal Defense Attorney Near Me
Every aspect of your life can negatively be affected when facing charges of drug possession with intent to sell. By reaching out to a skilled drug crimes defense attorney as soon as possible, they can have ample time to look into your case and build a reliable defense to contest the prosecution’s evidence. Attorneys at The Los Angeles Criminal Defense Attorney understand how challenging it can be for a person facing felony drug charges. Due to this fact, we do all we can to fight for our clients to obtain the best possible verdict. We are happy to say we have a successful record of defending persons charged with drug possession for sale. Call us at 310-564-2605 for a free consultation.
