They can. California makes it a crime to offer to sell, furnish, give away, or transport for sale a controlled substance, and that charge does not require police to find any drugs. The prosecution still has to prove that you intended to go through with the offer, that what you offered was a controlled substance, and that the messages are actually yours.

An offer is a separate crime from a sale

Health and Safety Code sections 11352 and 11379 punish not only selling, furnishing, giving away, or transporting a controlled substance for sale, but also offering to do any of those things. CALCRIM No. 2301, the jury instruction for offers, requires proof that you made the offer, that you intended to carry it out when you made it, and what the controlled substance was. It adds that “the People do not need to prove that the defendant actually possessed the controlled substance.”

The rule traces to cases such as People v. Jackson (1963) 59 Cal.2d 468, decided under former Health and Safety Code section 11501, where the California Supreme Court said that “delivery is not an essential element of the offense of offering to sell a narcotic.” The defendant took $20 from an undercover officer and never delivered heroin or anything else, and the missing delivery did not defeat the charge.

Words that look like an offer are not enough

Jackson also enforced an intent requirement. Quoting an earlier decision, the court said that a “specific intent to sell a narcotic is an essential element of the crime of offering to make such a sale.” It reversed the conviction because the jury had been told that an intent to actually make the sale was not required, and the evidence would have let jurors find that the defendant never meant to deliver. So a message that reads like an offer is not automatically this crime; the prosecution must prove you meant to do what the message describes. An offer made with no intent to deliver is not necessarily lawful, though. The court treated it like other bunco (swindle) offenses, pointing to Penal Code provisions rather than the drug statute.

How intent is tested when the evidence is messages

Intent can be proved by circumstantial evidence, which in a text-message case means context: word choice, quantities and prices, earlier messages, and what happened afterward. When the prosecution relies on circumstantial evidence to prove intent, CALCRIM No. 225 tells jurors that if they can draw two or more reasonable conclusions from it, and one supports the required intent while another does not, they must conclude that the intent was not proved. Jurors must also reject any conclusion that is unreasonable. A joke, a price quoted for someone else, or a conversation about something other than drugs can be a reasonable alternative reading, depending on the whole thread.

Before any message counts, it has to be authenticated

Evidence Code section 250 defines a writing broadly enough to include a stored text message: it covers recorded communications “regardless of the manner in which the record has been stored.” Under sections 1400 and 1401, a writing must be authenticated before it is admitted, which means evidence “sufficient to sustain a finding” that it is what the prosecution says it is, such as a message you sent. That is a threshold showing rather than proof with certainty, but it has to be made. One route is section 1421: a writing can be authenticated by showing it refers to matters unlikely to be known to anyone other than its claimed author. That is why details in the conversation itself, such as names, places, or plans only the sender would know, can matter as much as the phone number a message came from.

What to gather if this is your situation

  • The complete message thread, not just the excerpts investigators quote, since context can change what a message reasonably shows.
  • Anything showing who had access to the phone or account at the relevant times.
  • What specific words or slang actually referred to, if they had an ordinary meaning. Share this with your lawyer, not with investigators or anyone in the thread.
  • Whether any controlled substance was ever found, and where.

Do not delete, edit, or forward any messages, and do not contact the other people in the conversation about the case. When cash, scales, or packaging were found along with drugs, the questions are different.

Getting help

A drug-sales charge built mainly or entirely on text messages deserves a close look at how those messages were obtained and whether they can be authenticated. The Law Offices of David S. Chesley can walk through that with you; reach the firm at (800) 755-5174. The firm’s page on possession for sale covers related charges where drugs were recovered.