A criminal conviction for drug possession or drug trafficking in California can result in serious criminal penalties. The law in California criminalizes two distinct types of drug possession. Those crimes include simple drug possession and possession with the intent to sell. The law also differentiates between possession of controlled substances (i.e., narcotics) and marijuana. There are also separate criminal offenses for phencyclidine (PCP) and methamphetamines.If you are currently facing a drug possession charge in California, the experienced California criminal defense attorneys at The Law Offices of David S. Chesley may be able to help. Our experienced legal team can go over your charge and potential penalties with you and develop a plan for moving your case forward. Call us today at 800-755-5174 or contact us online to schedule a free consultation.How does Simple Drug Possession Differ from Possession for Sale?If the defendant is found in possession of any substance which is listed under the California Health and Safety Code, then the prosecutor can charge him or her with simple possession. However, if the prosecutor believes that the defendant possessed the drugs with the intention of selling or distributing them, then the prosecutor can charge the defendant with “possession for sale” or “purchase for the purpose of sale.”What Constitutes Drug Possession in California?There are two types of drug possession which are criminalized under the law. Those include actual physical possession of a drug and constructive drug possession.
  • Actual physical possession of a drug means that the individual actually has the drug present on his or her person. For example, the drug could be hidden in the person’s front or back pants pocket or in the pocket of a jacket or coat which the person is wearing.
  • Constructive possession concerns control or the right to control the substance, personally or through another person; physical possession is not required. The prosecution must also establish the required knowledge. Being nearby, visiting a home or riding in a vehicle does not alone establish those elements. Counsel should examine access, control and knowledge rather than rely only on ownership of the property.
What Penalties can be imposed for Drug Possession in California?The potential penalties upon conviction for a California drug possession crime depend upon several factors. Those factors include the type and amount of the drug possessed and the reason why the defendant was possessing the drug.Proposition 47, passed in 2014, reduced specified drug-possession offenses to misdemeanors, subject to eligibility exceptions. The later Proposition 36 added a treatment-mandated felony pathway for specified hard-drug possession with qualifying prior convictions. Moreover, individuals serving time for drug possession charges in a state prison were allowed to file a petition with the court for resentencing. However, Proposition 47 does not make every inmate eligible to petition the court for resentencing. This includes individuals who have been convicted of murder or rape or are registered sex offenders.Many ordinary controlled-substance possession cases are misdemeanors, but the substance, exact statute and qualifying prior convictions can change the charge and available treatment options. Counsel should review the complaint rather than assume every non-cannabis possession case is a misdemeanor. For an ordinary misdemeanor simple-possession conviction under the applicable statute, the maximum county-jail term can be one year. A charge subject to a different statute or exception requires its own penalty analysis. Drugs which qualify as controlled dangerous substances in California include the following:
  • Schedule I opiates and opium derivatives
  • Cocaine
  • Mescaline
  • Peyote
  • Synthetic cannabis
  • Schedule II narcotics
  • Schedule II opiates
  • Schedule III hallucinogens
  • Schedule III, IV, or V drugs
Marijuana possession, however, is penalized differently than other drugs under the law. Specifically, if an individual is found in possession of greater than 28.5 grams of marijuana (with the exception of concentrated cannabis), he or she can be incarcerated for a maximum of six months and/or fined a maximum of $500.For unauthorized possession of no more than 28.5 grams of cannabis, section 11357 distinguishes people under 18 from adults 18 through 20. The minor provisions include drug education or counseling and community service; the ordinary adult provision is an infraction with a fine up to $100. Authorized medicinal use and school-ground offenses require separate analysis.What are the Potential Penalties for Possessing Concentrated Cannabis?For adults 21 or older, California permits possession of up to eight grams of concentrated cannabis subject to applicable restrictions; medicinal rules may differ. Unauthorized possession of more than eight grams by a person 18 or older can carry up to six months in county jail, a fine up to $500, or both under Health and Safety Code section 11357(b)(2). Different rules apply to minors and to other offenses.How is Marijuana Possession Handled in California?Under Proposition 64, recreational marijuana has been decriminalized, pursuant to the Adult Use of Marijuana Act. Under this new law, adults who are 21 years of age or older are allowed to buy, possess, and consume a maximum of 28.5 grams of marijuana. The law also permits them to consume eight grams of marijuana at their home or residence – or even in an establishment which holds a license for marijuana consumption.Although limited consumption is legal under the new law, users are not permitted to smoke marijuana while operating a motor vehicle. They are also prohibited from smoking marijuana in any location where tobacco products are prohibited, as well as in most public places.In addition to these general prohibitions, Californians are not permitted to possess marijuana on school grounds or on the grounds of a youth center, day care center, or other public place where children are present. Individuals may grow a maximum of six marijuana plants in their private residence. However, the residence is required to be locked and may not be visible from a public vantage point.The new California laws regarding marijuana do not change anything with regard to medical marijuana. For the medicinal-cannabis sales-and-use-tax exemption, the patient or primary caregiver must present a valid Medical Marijuana Identification Card and valid government-issued identification at purchase. A physician’s recommendation alone does not establish that exemption.What are Possible Legal Defenses for California Drug Possession Crimes?If you have been charged with drug possession in California, you may have one or more legal defenses available to you. These defenses can be hard to spot, however, so it’s important to have a qualified California criminal defense attorney review your case. Some common defenses in drug possession cases include:
  • Medical necessity – Specifically, you may be able to allege that you have a medical condition warranting limited drug use and/or that you are in possession of a valid prescription issued by a licensed physician.
  • Unlawful search and seizure – You may be able to allege that the drugs in question were found pursuant to an improperly issued search warrant or following an invalid search or seizure that violated your Fourth Amendment rights.
  • Entrapment – You may be able to allege that police officers or investigators utilized improper tactics or that they entrapped or illegally coerced you into committing the drug crime.
  • Faulty lab analysis – You may be able to challenge any lab analysis that was performed on the drugs in question, in order to show that you possessed a smaller amount of the drug than prohibited by law.
Contact a Criminal Defense Attorney in California Today to Schedule a Free Case EvaluationIf you have been charged with a drug possession crime in California, you need experienced legal representation in your corner advocating for you at all times. The experienced California criminal defense lawyers at The Law Offices of David S. Chesley can advocate for you throughout your criminal case, including at all criminal court proceedings and trials.The potential consequences of a drug possession conviction are too great for you to handle your criminal case alone. Therefore, to schedule a free consultation and case evaluation with a criminal defense lawyer in California, please call us today at 1-800-755-5174, or contact us online.