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Criminal Defense for Drug Crimes
California Drug Law
California has some of the most complex illegal drug and controlled substance laws in the country. A person can be charged for a variety of activities related to illegal drugs:
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Possession (for personal use or sale)
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Sales (including giving drugs to someone)
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Transportation (or trafficking)
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Cultivating or manufacturing
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Attempt to possess, sell, manufacture or transport drugs
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Being under the influence of drugs.
"Controlled substances" include illegal drugs like crack or powder cocaine, heroin, ecstasy and crystal meth. They also include use of prescription drugs like painkillers, (OxyContin, Vicodin, Hydrocodone) or ADD drugs (Adderall, Ritalin, Concerta).
How the crime is charged and punished depends on several factors, including the type and quantity of the drugs involved, whether the drugs were for personal use or for sale, and whether the defendant has a criminal record, especially prior drug convictions.
These factors affect whether the drug crime will be charged as a misdemeanor or felony, whether jail or prison is required, the length of incarceration, fine amounts, eligibility for sentencing alternatives (deferred entry of judgment) and enhancements.
Possession of Drugs For Personal Use
California Health and Safety Code sections 11350 and 11377 make possession of a controlled substance (e.g., cocaine, methamphetamine, heroin, opium, opiates, LSD, PCP, hashish, Vicodin) a misdemeanor unless you have a legal written prescription.
Possession of marijuana is usually charged as a misdemeanor.
Possession of Marijuana (Health and Safety Code section 11357) is also charged as a felony unless the possession was less than an ounce of marijuana—then the charge is either a misdemeanor or an infraction.
If you have been charged with possession of a controlled substance for personal use as a felony, you could be sentenced up to a year in county jail. Most people will be eligible for alternative sentencing (Prop 36 or drug diversion) and avoid jail completely.
Possession of Drugs For Sale
California law makes a distinction between drug possession for personal use and possession for sale. California Health and Safety Code 11351, 11378 and 11351.5 make it a felony to possess drugs for the purpose of selling them.
The prosecution does not need to prove that you sold the drugs, but only that you had the intent to sell them. Intent can be proven with circumstantial evidence. Such asthe quantity of drugs, the packaging of the drugs, and possession of any scales.
For example, if law enforcement goes to your house and finds drugs in quantities larger than would be normally expected for personal use, this could indicate that there was intent to sell. Other indications of intent to sell drugs may include packaging, scales, cutting agents, large amounts of cash, multiple cell phones, and a fortified location (such as security bars on windows).
In Los Angeles, we have encountered many cases that are mistakenly charged as possession for sale when the drugs were for personal use. Possession for sale carries up to five years in state prison. A conviction for possession of drugs for sale is a "priorable" offense, which means that it will increase the penalties (usually by three years of state prison) for a future drug sales conviction.
Transportation & Furnishing of Drugs
California drug trafficking laws prohibit the transporting, importing (bringing drugs into California) or selling, furnishing, or giving away of controlled substances. This drug offense is usually prosecuted as a felony under California's Health and Safety Code sections 11352 or 11379.
This crime is punishable by up to five years in state prison. You can also be charged with trafficking if you aided, abetted or conspired with someone to traffic drugs. Trafficking charges are often filed as a result of a police sting operation, in which case an entrapment defense may be possible.
Manufacturing Drugs
Manufacturing, compounding, converting, producing, deriving, or preparing by chemical extraction or independently by chemical synthesis or preparing drugs is a felony in California and is punishable under Health and Safety Code section 11379.6 by up to seven years in state prison.
Cultivating or Harvesting Marijuana is prosecuted as a felony under Health and Safety Code section 11358 and is punishable by up to three years in state prison.
Under the Influence of a Drug
Health and Safety Code section 11550 makes it a misdemeanor to use or be under the influence of a controlled substance except when administered by a person licensed to dispense, prescribe or administer. Under this same section, it is also a misdemeanor to be unlawfully under the influence of a controlled substance while in immediate possession of a loaded operable firearm.
A subsequent conviction with a prior is prosecuted as a felony. Penalties for misdemeanor Health and Safety Code section 11550 is a minimum sentence of 90 days in county jail or up to one year in county jail. However, most offenders of this charge may qualify for Proposition 36 or DEJ (Deferred Entry of Judgment).
Alternatives to Jail Time
In Los Angeles, depending on your circumstances you may be eligible for alternative sentencing such as Proposition 36 or Deferred Entry of Judgment (also known as DEJ or Diversion). We have found these programs to be an effective alternative to county jail or state prison.
Proposition 36
The Substance Abuse and Crime Prevention Act, also known as "Prop 36," allows individuals charged with first or second time non-violent, simple drug possession offenses to get substance abuse treatment as an alternative to incarceration. A Proposition 36 sentence requires treatment for up to one year, with an additional six months of aftercare treatment.
Deferred Entry of Judgment (DEJ or Diversion)
For a Deferred Entry of Judgment, the defendant must enter a guilty plea, but he or she is not convicted. For 18 months, the case is put on hold while the defendant takes drug education classes and shows he or she can avoid being arrested or convicted of another crime. If the defendant succeeds, the charges are not entered on the defendant's criminal record and the charge is dismissed.
Possible Defenses To Your Drug Charges
One of the most crucial defenses in drug cases centers on the initial arrest and the seizure of the drugs. Was the search by law enforcement conducted properly without violating your constitutional rights? Did law enforcement have reasonable suspicion for the traffic stop, and if so, was there probable cause for the search of the car or the person that resulted in the seizure of the drugs?
Did law enforcement have the legal right to search your home or wiretap your phones? Was the confidential informant (CI) a reliable source of information? Illegal searches and seizures happen sometimes in drug cases and any evidence that was illegally obtained generally cannot be used in court. Suppression of the illegally obtained evidence often leads to dismissal of the charges.