If you are caught in possession, using, selling, distributing, or manufacturing illegal substances such as meth, cocaine, ecstasy, marijuana, or illicit prescription painkillers, you will be facing drug-related offenses. The charges are punishable with jail time, drug treatment programs, permanent criminal record, and hefty fines. Contact the Orange County Criminal Defense Attorney Law Firm to help you understand more about drug crimes.
Classification of Drug Crimes in California
Drug-related offenses in California are classified either as a felony or misdemeanor.
Several factors determine if a charge is a felony or a misdemeanor. These factors include:
- The type of controlled substance you were arrested for
- The number of narcotics in discussion
- Whether the drugs were for sale or personal use
- The prior criminal history of the defendant
- Whether weapons of violence were involved
Criminal charges involving possession of drugs for sale are charged as felonies, but for cases where the narcotics are in small amounts, the charge against you is a misdemeanor. The penalty for this type of charge is up to two years jail term.
Under Health and Safety Code 11350, it is illegal to possess controlled substances like cocaine, heroin, or LSD without a lawful order. Possession can be viewed as in three different legal perspectives. You can be arrested and charged for actual possession, constructive possession, or joint possession.
In these cases, the prosecution must prove that you had possession, the knowledge that the narcotics were illegal and a sufficient quantity of drugs for personal use.
The penalties for possession of illegal drugs after conviction by a judge include:
- A maximum of one year in county jail
- A fine of $1000 or both
- A drug treatment program for those who qualify for Prop 36 sentencing
Possession for Sale
According to HS 11351, it is a felony to possess controlled substances for sale. Prescription drugs, heroin, LSD, and cocaine are some of the narcotics covered under this law. To be convicted of intent to sell, the prosecution must:
- Show that the narcotics were packaged in bundles
- Prove there was a colossal stash of cash during the arrest
- Prove that there was much traffic at your place with people coming in and out
- Show that the number of controlled substances in your possession was for sale and not personal use
If the prosecution can convince the judge or the jury that you possessed the drugs with intent to sell, you will be sentenced for two, three, or four years in county jail and a fine of up to $20,000. An excellent criminal defense attorney can earn you one-year probation, but you won't be eligible for a drug treatment program.
Sale or Transportation of Controlled Substances
The sale or transportation of controlled substances is codified under the Health and Safety Code 11352. You will be violating this law if you are arrested selling drugs, moving controlled substances, administering drugs to other persons, giving illegal drugs to people, or doing all the above-prohibited factors. The controlled substances prohibited in this code include peyote, cocaine, heroin, Vicodin, and LSD.
The penalties for violating the HS 11352 are:
- Three to nine years in jail
- A fine not exceeding $20,000 or both
If you are arrested for selling drugs to minors or moving vast quantities of narcotics, the fine and jail time is going to increase significantly since these are referred to as aggravating factors.
Manufacturing of Controlled Substances
Health and Safety Code 11379.6 make it unlawful to manufacture or produce controlled substances. It is not a must you be involved with direct manufacturing to be charged with violating HS 11379.6. You will have committed an offense if you knowingly to take part in the initial stages of manufacturing illegal drugs. Possessing chemicals that are used in making meth and owning a meth lab are all offenses under this code. However, possessing equipment used in the manufacture of controlled substances is not an offense.
Manufacturing of these illegal drugs is a felony punishable by:
- Three, five, or seven years in county jail
- A fine not exceeding $50,000
- Offering to take part in manufacturing in the initial or intermediate stages is punishable by three, four, or five years in prison.
If aggravating factors such as manufacturing in an area close to where children stay can lead to additional or consecutive five years jail term. Other factors that can provoke your sentence for violating HS 11379.6 are:
- Being sentenced to producing large quantities of GHB, PCP, or meth
- Having a prior criminal record of illegal drug production
- During the process of manufacture, you cause massive injuries or fatality to another person
Under the Influence of Illegal Narcotics
Health and Safety Code 11550 prohibits the use or be under the influence of controlled substances. These controlled substances include stimulants, depressants, PCP, cocaine, heroin, and opiates.
The prosecution often applies current use, or immediate use prior arrest when convicting you. If you have withdrawal symptoms, it is a sign of previous use, but for those with no withdrawal effects, it is a sign of current consumption.
To be convicted under the influence, the prosecution needs to prove that you had impairment or misconduct of any kind. For people arrested for driving under the influence, if the drug they had taken is a controlled substance, they will be liable for DUI offense and violation HS 11550.
Consequences for violating this code are:
- A maximum of five years’ probation
- Drug counseling
- Community service
- A jail term not exceeding one year
The Control, Regulate, and Tax Adult Use of Marijuana Act was voted in by the people of California in 2016 to legalize personal possession and growing of marijuana for personal use. It becomes legal to possess, use, or plant pot in California.
According to Prop 64, an adult (21 years and above) is allowed by the law to possess up to an ounce of marijuana or grow a maximum of six marijuana plants for personal use. The bill also permits adults to buy one ounce or up to 8 grams of cannabis concentrate in a single day.
When a minor or a person below the age of 18 years is found in possession of marijuana, he or she will be charged with a misdemeanor. Possessing marijuana in the school compound or over 28.5 grams is also a misdemeanor.
It is a felony to possess marijuana in California if you are under the age of 18, and you are carrying or selling marijuana. The penalties include three to five years in prison for young people aged 14 to 17. Also, you will be charged with a felony in case you have been convicted of multiple drug crimes in the past.
The California Proposition 36
It is also known as the Substance Abuse and Crime Prevention Act of 2000. It is a criminal conviction initiative that was enacted to ensure that people arrested for nonviolent drug crimes do not spend time in jail, and instead, they serve mandatory time in drug treatment programs. The drug treatment programs offer drug education, outpatient or residential treatment services, narcotic replacement therapy, or aftercare services. Not every drug crime offender is eligible to Prop 36.
Definition of nonviolent drug possession offenses in Prop 36
Unlawful use or being under the influence of controlled substances and possessing or transportation of illegal narcotics for personal use is considered a nonviolent drug possession offense. The illicit drugs in this category should include cocaine, peyote, GHB, meth, heroin, and marijuana.
For instance, if you are smoking marijuana in your house and police come to knock on your door after your neighbor has called them on you due to another reason other than smoking marijuana, and you open thinking it is a friend, you will be arrested and charged for having marijuana.
When you appear in court, you can plead guilty for having a controlled substance for personal use. You will not go to jail. Instead, you will be sentenced for drug treatment under Prop 36.
If the police conduct a search and find large amounts of marijuana, you will be charged with possession of a controlled substance for sale. If you plead guilty, you will face a jail or prison time because you are no longer eligible to Prop 36.
Additional exemptions from Prop 36
If you violate the Health and Safety Code 11358 (California Laws against Cultivation of Marijuana), you will be exempted from California Proposition 36. Violation of HS 11370 and HS 11368 are also among the drug crimes that are exempted from Prop 36.
Factors that could disqualify you from eligibility of Prop 36
It is easy to get miss out on prop 36 qualification. If:
- You have previously been sentenced for a violent or serious felony, the crime violates California’s three strikes law, and you will not qualify for sentencing under the Prop 36 unless the crime was committed five years ago after being released from prison or after being convicted for a nonviolent drug possession offense. People who have been previously convicted in juvenile courts for criminal activities will also qualify for Prop 36.
- You were sentenced for a non-drug related felony or misdemeanor
If you committed a misdemeanor or felony that doesn’t involve possession or use of the drug or drug-injecting or smoking instruments, were not present in a place where controlled drugs are abused, failed to register a drug offender or were never involved with the simple personal possession of illegal narcotics.
- You refuse drug treatment
- You have been involved in two previous Prop 36 programs
- You were armed with a deadly weapon at the time of committing a nonviolent drug possession crime
California Penal Code 1000
The code is very similar to Prop 36, and it is referred to as California’s deferred entry of judgment. The purpose of the program is allowing nonviolent drug possession offenders to have their charges dropped when they complete a drug treatment program. The two programs have some differences:
- The length of Prop 36 is a maximum of 2 years, while in PC 1000, the range of the treatment program is between 18 months to three years.
- In Proposition 36, the judge is required to convict you to formal probation while you participate in the drug treatment program, but in PC 1000, you will not be sentenced to probation while in drug treatment.
- In Prop 36, those who qualify for sentencing under this proposition must receive drug treatment instead of incarceration, but in deferred judgment, the judge can force you to plead guilty, challenge the case or try to qualify for Prop 36 sentencing.
Common Defenses for Drug-Related Charges
Your crime defense lawyer needs to analyze the state’s case to find out where the cops might have gone wrong, and if they had probable cause to arrest you for a drug crime. Narcotic officers who make these arrests go wrong somewhere during arrest and investigation which might be used for your defense.
Ignoring the California Rules for Search and Seizure
The fourth amendment of the federal Constitution makes it clear that police or narcotic officers have no right to search your property unless they have a search warrant from a judge, or the search falls under one of the federal or state of California court exceptions.
Exceptions to the search warrant requirement
Search, and seizure can be conducted in Orange County, CA, without a search warrant when:
- The seizure/search is done with your consent
- The search incident is due to a lawful arrest when police are looking for a weapon or crucial evidence that might end up destroyed
- During inspection searches
- Automobile exception
- Seizures or searches are done in emergencies that are critical in preventing physical or property harm
- Someone is stopped and frisked by law enforcement officers during temporary detention to look for any lethal weapon that could risk the safety of the officers
If you were arrested for a drug-related offense after an illegal search or seizure, your attorney could help have the discovery dropped from the case through the Penal Code 1538.5 PC. He or she will raise the motion to suppress the evidence. Your defense attorney can file a motion to suppress evidence if:
- The search warrant was insufficient at its face
- There was no probable cause to issue the warrant
- Execution of the search warrant was illegal
- The seized evidence was not explicitly mentioned in the search warrant
Violating California Entrapment Laws by Setting up the Suspect
If the defendant can argue that he or she was lured into a trap set by the officers, then the charges will be dropped or dismissed.
What is considered entrapment in California?
If you are a law-abiding citizen and you are induced to commit an offense that you could have otherwise not engaged, it is referred to as entrapment. The entrapment law only pays attention to the conduct of the officer and not the history of your behavior as long as you are an average law-abiding citizen.
To prove that the officer presenting the evidence or who made the arrest is guilty, you have the burden of proving the officer is guilty of entrapping you. If the evidence produced by the narcotic officers fails to convince the prosecutor beyond a reasonable doubt that you committed the crime, then the case will be dropped.
Keep in mind that the person entrapping you must be a law enforcement officer and not any other person. A person is acting as an agent of the police who traps you can help you win the case if you can prove entrapment.
In case you were persuaded to commit unlawful conduct by being promised that the behavior is not criminal, the crime will not be detected, there will be rewards or the officer appeals for sympathy, it means you were persuaded to commit the crime thus qualifying for entrapment.
If the Narcotics Police Relied on Bogus Confidential Police Informants
Confidential informants are very unreliable, especially those who get compensation after feeding law enforcement officers with information. Such informants can say anything to the prosecution to get their reward. It is unethical for police to develop personal relationships with informers, make promises they can’t keep, or give money to informers who are drug addicts who are likely to spend the money on drugs.
Your criminal defense attorney can argue that the informant leading to your arrest was bogus and have the charges dropped.
If the identity of the confidential informant is not revealed, request for disclosure of the identity of the informant. Doing so will help you learn about certain ethical issues that will help show that the police made some mistakes when making the arrest.
Misleading Judges to Obtain Search Warrants
A California search warrant gives police officers consent to search for evidence of unlawful activities in your premises, car, or place of work. The police must use the search warrants unless you have given them consent to search your property, it is an exception or if it is something leading to a lawful arrest. Due to this, there is a sure way the search warrant must be executed, and if these rules are violated, the evidence against your drug crime might be dismissed, or the charges dropped altogether.
A court judge is the only person allowed by the law to issue the search warrant because they are detached and seated on the fence when it comes to this matter. The judge will issue the search warrant if he or she is convinced the evidence is in your home, car or place of business, a drug crime or any other crime has been committed, and the affidavit is convincing.
If the judge issued the search warrant, you could request a hearing to have the warrant quashed. However, for that to happen, your criminal defense attorney must argue that the affidavit contained false information or statement, the statement or information was given knowingly, and that the account was required to prove probable cause.
In case the judge questions the informant whose information was used in the affidavit and realizes that some of the information was left out, or the report was false. If your attorney is successful in proving that the information was incorrect, then the search warrant that was used will be squashed. At the same time, all the evidence collected during the search warrant will be suppressed, leaving the drug-related or criminal charges you are facing with inadequate or less discovery that might lead to your release.
Getting this information helps in casting doubt on the testimony of the informant, which can trigger the judges to call the informant whose identity is not disclosed for camera hearing. Your attorney will get the chance to cross-examine the informant to find information that can be used to suppress evidence originating from a search warrant issued due to an affidavit containing false material information.
Other defenses include a prescription for medical marijuana for personal use and that the drugs don’t belong to you. Not every attorney can offer such protection so always retain the best.
What must the prosecutor prove in this Type of General Crime?
After an arrest for drug-related charges, the prosecution must prove that you were knowingly in possession of controlled substances. Also, they must show that you knew that the controlled substance was illegal. The charges that will be brought forward against you are possession with intent to distribute and simple possession. If the prosecution cannot prove you knowingly possessed illegal drugs, the charges will be dropped.
Find a Criminal Defense Attorney Near Me
A significant number of people arrested for drug crimes are set up by the law enforcers. Evidence might be tampered with to make sure you not escape the charges. No one deserves to be wrongfully convicted, which is why the Orange County Criminal Defense Attorney Law Firm will advise you on the various types of drug crimes, what prosecution should prove, and the best legal defenses. Reach the law firm at 714-740-7171 for a zero-obligation consultation.