1. unlawful possession of controlled substance,
2. knowledge of its presence,
3. knowledge of the substance’s nature or character as a controlled substance, and
4. the controlled substance was in a usable amount.
Defenses. An experienced attorney may raise several defenses on your behalf. There could have been a lack of control or possession, momentary possession, lack of knowledge, valid prescription, or failure to follow police procedures.
Punishment. The possession of a controlled substance under HS 11350 is a felony. This crime is punishable by 16 months or 2 or 3 years in county jail. You may also be placed on parole or probation.
After November 4, 2014, Proposition 47 made the possession of controlled substance a misdemeanor. The maximum sentence is one year in jail.
Can you be charged with possession of narcotics even if you didn’t intend to use or sell the narcotics? Yes, the purpose of your possession is irrelevant to the crime. The prosecution needs to only show the elements mentioned above to convict.
Can you be charged with H&S 11350 if you did not know of the drugs presence? No, the second element (see above) requires you to have knowledge of the drugs presence. For example, you borrow your friend’s car to drive to work. You are stopped for a simple traffic violation. While being cited, the police officer asks you for a permission to search the car’s trunk. You consent to the search because you believe the trunk is empty. You did not put anything in the trunk and never even opened it. The police finds marijuana stashed in the trunk. You will not be convicted of this crime because the prosecution will be unable to prove the knowledge element.
Can I be convicted of possession of a controlled substance for prescription medication? Yes. The statute encompasses both legal and illegal drugs. You can be convicted, if you are possessing a legal prescription drug without a valid prescription from a licensed doctor.
Can I be convicted if the drugs were merely in my car? Yes, assuming other elements are met. You do not have to hold the drugs in your hand to be convicted. Possession does include having drugs in your car.
- Possession of a Controlled Substance with Intent to Sell | HS 11351
- Transportation for Sale of a Controlled Substance| HS 11352
- Possession of Marijuana | Health and Safety Code Section 11357 | HS 11357
- Marijuana Cultivation, Harvest, Plant | HS 11358
- Possession of Marijuana for Sale | Health and Safety Code 11359 | HS 11359
- Marijuana Sale, Giving Away, Transportation | California Health and Safety Code Section 11360 | HS 11360
- Possession of Drug Paraphernalia | California Health and Safety Code 11364 | HS 11364
- Manufacturing a Controlled Substance (Marijuana, Hash Oil, etc.) | HS 11379.6(a)
- Driving Under Influence of Marijuana (Marijuana DUI) | California Vehicle Code Section 23152 | VC 23152
- Can a vehicle be searched by police officers if they smell marijuana outside of the vehicle?
- When can police stop and search my vehicle?
Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP. Anton Vialtsin Google+