Committing drug offenses in California can result in serious consequences for convicted persons, including the possibility of significant incarceration.

The Nature of Drug Crimes in California

After arrest, your case may proceed in several possible ways, depending on the specific charges pending against you. Therefore, the prosecutor may charge you for possessing, distributing, or using an illegal drug, among other activities under the following statutes:

Possession of a Controlled Substance (California Health and Safety Code section 11350: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11350.html)

Possession for Sale of a Controlled Substance (California Health and Safety Code section 11351: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html)

Sale or Transportation of a Controlled Substance (California Health and Safety Code section 11352: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11352.html)

Possession of Methamphetamine (California Health and Safety Code section 11377:
https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11377.html)

Possession for Sale of Methamphetamine (California Health and Safety Code section 11378:
https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11378.html)

Possession for Sale of Methamphetamine While on Bail (California Penal Code section 12022.1: https://codes.findlaw.com/ca/penal-code/pen-sect-12022-1.html)

Felony Transportation of Marijuana (California Health and Safety Code section 11360(a): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11360.&lawCode=HSC)

Being Under the Influence of a Controlled Substance (California Health and Safety Code section 11550: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11550&lawCode=HSC

Narcotics Offender Registration (California Health and Safety Code section 11590: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11590.html)

DUID -- Driving Under the Influence of a Drug (California Vehicle Code section 23152(f): https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html).

Different types of drugs entail different degrees of punishment as discussed below.

Ecstasy/“E”/“Molly”/MDMA

“Ecstasy” is, of course, classified as a controlled substance, meaning it is illegal to possess or use. It also goes by names like “Molly” and MDMA, which stands for methylenedioxymethamphetamine.

See: https://www.merckmanuals.com/home/special-subjects/recreational-drugs-and-intoxicants/methylenedioxymethamphetamine-mdma

Ecstasy often presents a relatively high possibility of psychological (but not physical) dependence and addiction over time to its users.

Similarly, Ecstasy is often abused by its users, thereby increasing the risk of overdose. As a result, it is considered to be – and is prosecuted by law enforcement as such – to be the equivalent of crystal methamphetamine (“meth”).

Based on the multiple legal restrictions against Ecstasy, you may face the following charges upon arrest:

Possession of Ecstasy (California Health and Safety Code section 11377: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11377.html):

Possession of Ecstasy (referred to simply as “E” during the 1990s) will be prosecuted under this statute (which is the same for possessing meth).

When the prosecutor presents your case, they will need to prove that you are guilty of possession. To do so, they must show the jury (or, in the absence of a jury, a “court” or “bench” trial adjudicated solely by the judge) that law enforcement officers retrieved the Ecstasy from your person, meaning you had stored it on your body through your clothes or by stashing it in your body orifice.

Alternatively, the prosecutor can prove possession by showing that the drug was within your control even if you did not have it on your person. For example, the law enforcement personnel working on or investigating your case may have retrieved the Ecstasy from your house, vehicle, or office, for example. They will therefore need to prove that the location of retrieval was an area within your control.

For clarification, “exercising control” includes any actions you take towards concealing or storing the drugs. For example, if you can lock or hide the drug from plain sight, you exercised control over who can access it.

In addition, the prosecution should show that you possessed the drug for personal use. Obviously, retrieving the Ecstasy from your possession evidences your intention to personally use it. But the prosecution – typically the Los Angeles County District Attorney's Office (D.A.’s Office) (https://da.lacounty.gov) if you’re being charged with a felony (for any crime), or the Los Angeles City Attorney's Office (C.A.’s Office) (https://www.lacityattorney.org) if you’re being charged with a misdemeanor – will typically introduce extrinsic evidence, such as drug paraphernalia seized from your residence, etc.

Alternatively, or in conjunction therewith, the prosecutor – either a Deputy District Attorney or Deputy City Attorney -- may attempt to get a toxicology report proving the drug was in your system at the time of your arrest (e.g., after you’ve been booked at the local Los Angeles Police Department (LAPD) (https://www.lapdonline.org), Los Angeles County Sheriff's Department (LASD) (https://lasd.org), or California Highway Patrol (CHP) (https://www.chp.ca.gov)  station) for suspicion of driving under the influence of an illegal narcotic.

See the Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) Number 2304 (“Simple Possession of Controlled Substance -- Health & Saf. Code §§ 11350, 11377”): https://www.justia.com/criminal/docs/calcrim/2300/2304/

Penalties for Possession of Ecstasy

If the judge or jury finds you guilty of a possession offense, you may face felony or misdemeanor penalties – based on your particular circumstances, including the amount in your possession, the presence or absence of indicia of sales or trafficking, and even your prior criminal record, if any.

As a misdemeanor, the offense may result in a jail sentence of up to one year.

If you face felony charges, your penalties may include a state-prison sentence that may last for sixteen months, or two or three years.

However, the presiding judge may order you to join a Drug Diversion (California Penal Code section 1000: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1000) program and forgo serving your jail sentence. If so, you must complete drug treatment and any other mandates from the court before the judge closes your case.

See also Possession of a Controlled Substance While Armed (California Health and Safety Code section 11370.1: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11370-1.html);

CALCRIM Number 2303 (“Possession of Controlled Substance While Armed With Firearm -- Health & Saf. Code § 11370.1”): https://www.justia.com/criminal/docs/calcrim/2300/2303/

Possession of a Controlled Substance with Intent to Commit Sexual Assault (California Health and Safety Code section 11350.5: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=HSC&division=10.&title=&part=&chapter=6.&article=1.

 & California Health and Safety Code section 11377.5): https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11377-5.html

CALCRIM Number 2306 (“Possession of Controlled Substance with Intent to Commit Sexual Assault -- Health & Saf. Code §§ 11350.5, 11377.5”): https://www.justia.com/criminal/docs/calcrim/2300/2306/

Possession of Ecstasy with Intent to Sell (Health and Safety Code section 11378: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11378.html)

You may also face serious legal repercussions for possessing ecstasy to sell it for commercial gain. Section 11378 of the Health and Safety Code provides the relevant restrictions for the offense and penalties for any guilty offenders.

The primary elements of the crime are that you were in possession of the drug and intended to sell it. Thus, the prosecutor must prove beyond a reasonable doubt that you intended to sell or give away the drug for the judge or jury to find you guilty of this particular crime. Evidence typically comes in the form of the following:

  • the presence of scales to weigh drugs;
  • the presence of numerous small baggies;
  • paraphernalia or equipment for packaging the drugs;
  • large amounts of cash;
  • chemicals or substances to dilute or mix the drugs; and
  • “pay/owe” sheets.

And by “possession”, you either personally and physically possessed it, or you otherwise had it within your control (for example, your stash was kept at your friend’s house in a safe that only you knew the combination of).

In general, however, the larger the quantity of MDMA within your control or possession seized, the easier it is for the prosecution to prove that you intended to sell it. And, again, their theory becomes even easier to prove if the large quantities were in smaller packages or otherwise divided and labeled.

See CALCRIM Number 2302 (“Possession for Sale of Controlled Substance -- Health & Saf. Code §§ 11351, 11351.5, 11378, 11378.5”): https://www.justia.com/criminal/docs/calcrim/2300/2302/

See also CALCRIM Number 2300 (“Sale, Transportation for Sale, etc., of Controlled Substance -- Health & Saf. Code §§ 11352, 11379”): https://www.justia.com/criminal/docs/calcrim/2300/2300/

CALCRIM Number 2301 (“Offering to Sell, Transport for Sale, etc., a Controlled Substance -- Health & Saf. Code §§ 11352, 11379”): https://www.justia.com/criminal/docs/calcrim/2300/2301/

Penalties for Possession of Ecstasy with the Intention to Sell or Distribute

If the judge or jury find you guilty of possession for sale, you will face severe penalties, including the low, mid, or high terms of sixteen months, or two or three years in prison.

Selling or Transporting Ecstasy (California Penal Code section 11379: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11379/

You will face separate charges for the sale or transportation of Ecstasy, attracting more severe penalties for guilty offenders. Section 11379 of the Health and Safety Code prohibits these two actions and provides specific penalties for different scenarios where offenders break the law.

In court, the prosecution team focuses on proving that you participated in either selling or transporting Ecstasy. To do so, they need to satisfy the judge or jury that you either sold, gave away, furnished, imported, or administered the drug to someone else.

Importation involves buying and transporting the Ecstasy from a different country into the United States for sale here. Further, furnishing or giving the drug away often ties into completing a sale agreement, but also includes you, for example, simply giving away the drug to everyone at a house party. In other words, regardless of whether you sold it or gave it away for free, you will still be prosecuted for trafficking, which consists of any form of distribution to others.

If your charges involve administering the drug, the prosecutor must show that you helped a third party take the drugs orally, by inhaling, or through intravenous methods.

CALCRIM Number 2300 (“Sale, Transportation for Sale, etc., of Controlled Substance -- Health & Saf. Code §§ 11352, 11379”): https://www.justia.com/criminal/docs/calcrim/2300/2300/

CALCRIM Number 2301 (“Offering to Sell, Transport for Sale, etc., a Controlled Substance -- Health & Saf. Code §§ 11352, 11379”): https://www.justia.com/criminal/docs/calcrim/2300/2301/

CALCRIM Number 2330 (“Manufacturing a Controlled Substance -- Health & Saf. Code §§ 11379.6(a), 11362.3”): https://www.justia.com/criminal/docs/calcrim/2300/2330/

CALCRIM Number 2331 (“Offering to Manufacture a Controlled Substance -- Health & Saf. Code §§ 11379.6(a) & (c)”): https://www.justia.com/criminal/docs/calcrim/2300/2331/

CALCRIM Number 2335 (“Possession With Intent to Manufacture Methamphetamine or N- ethylamphetamine -- Health & Saf. Code § 11383.5(a)”): https://www.justia.com/criminal/docs/calcrim/2300/2335/

CALCRIM Number 2336 (“Possession With Intent to Manufacture PCP -- Health & Saf. Code § 11383(a)”): https://www.justia.com/criminal/docs/calcrim/2300/2336/

CALCRIM Number 2337 (“Possession With Intent to Manufacture Methamphetamine -- Health & Saf. Code § 11383.5(b)(1)”): https://www.justia.com/criminal/docs/calcrim/2300/2337/

Penalties for Transporting or Selling Ecstasy

The punishments available for the sale or transportation of Ecstasy vary depending on where you transported it. If you moved the drug within the county, you might face two to four years in prison. On the other hand, transporting the Ecstasy between two or more country borders attracts more severe penalties – namely, a prison sentence of three, six, or nine years.  

Driving Under the Influence of Ecstasy (California Vehicle Code section 23152(f): https://codes.findlaw.com/ca/vehicle-code/veh-sect-23152.html)

Lastly, you may face criminal charges if you drive under the influence of MDMA. The legal restrictions for driving under the influence of drugs (DUID) fall under section 23152(f) of the California Vehicle Code.

If you were a first-time DUID offender, you will likely face misdemeanor charges, especially if you did not cause or involve yourself in an accident. Thus, you can expect to face a maximum six-month jail sentence.

Designer Drugs/Synthetic Drugs

Besides Ecstasy, designer drugs are rising in production and consumption. This is because they are cheaper and easier to access based on the synthetic materials used in their development. However, they pose a severe health risk to users because they are not always sure that the ingredients used to formulate the drugs are safe for consumption. Notably, designer or synthetic drugs can replicate most drug combinations, including Ecstasy and other popular substances such as cocaine and LSD.

Consequently, legislation exists to curb the production and distribution of designer drugs through the provisions of section 11375 of the Health and Safety Code: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11375.html.

Further, you may face accusations of selling, transporting, administering, or using a synthetic component of the drug, which can be prosecuted under the same or similar statutes.

Alternatively, the prosecutor may have to prove that you possessed an indentified designer drug or component with the intention for sale. In many cases, establishing your intention to sell the drug requires the prosecutor to rely on circumstantial evidence or to present exhibits of items closely associated with sales.

For example, having large bundles of money in small denominations can be a crucial indicator of an ongoing sales business. Moreover, having packaging bags and weighing scales also show that you intended to package the synthetic drugs for sale.

CALCRIM Number 2338 (“Possession of Isomers or Precursors With Intent to Manufacture Controlled Substance -- Health & Saf. Code § 11383.5(c)-(f)”): https://www.justia.com/criminal/docs/calcrim/2300/2338/

CALCRIM Number 2315 (“Sale of Substitute Substance -- Health & Saf. Code §§ 11355, 11382”): https://www.justia.com/criminal/docs/calcrim/2300/2315/

CALCRIM Number 2316 (“Offer to Sell Substitute Substance -- Health & Saf. Code §§ 11355, 11382”): https://www.justia.com/criminal/docs/calcrim/2300/2316/

Penalties for Handling Synthetic Drugs

Simple possession cases typically result in misdemeanor charges and penalties, so you can expect to face six months in jail.

Hallucinogens

Handling hallucinogenic drugs is also a criminal offense prohibited under section 11350 of the Health and Safety Code (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11350.html), based on the likelihood of addiction and continuous drug abuse. Common criminalized hallucinogenic drugs include Ketamine, LSD, Opium, and DMT, which provide a strong dissociation from reality. Subsequently, your case requires the prosecutor to prove that you either possessed, sold, distributed, or administered the drugs.

Penalties for Handling Hallucinogens

Typically, your sentence might include a jail sentence of up to one year in jail.  However, offenders with a prior conviction risk facing three more years of incarceration at the judge’s discretion.

Defenses Applicable for Drug Crimes

Some of the best defenses to incorporate include:

You Did Not Intend to Sell the Drugs

Sometimes, possessing drugs to sell creates a more severe risk for accused persons to receive harsh penalties than drugs for personal use. Thus, denying involvement in selling or intending to sell illegal drugs, and arguing that your only personally using the controlled substance, is a given in your own defense.

However, you should note that this defense does not lead to a complete acquittal but may result in a significant sentence reduction. This is because proving your non-involvement in selling drugs will also show that you did not participate in behavior that often causes problems in the community. Since these are primary considerations that the judge may make when determining your sentence, you can expect a lighter punishment.

You Faced Police Entrapment

Police entrapment occurs if an undercover law enforcement officer makes you take drugs in circumstances where you would have otherwise not done so. Police officers run these operations to lure criminal offenders into engaging in illegal activities because they need probable cause for arrest. However, fabricating circumstances to complete an arrest is unlawful, forcing you to face charges after an unexpected scenario.

You Did Not Use Any Drugs

Additionally, you can deny having used drugs where the action forms a focal point in your case. For example, if you face a DUID charge, you can counter the prosecutor’s accusations of being under the influence by providing evidence on the contrary.

While using this defense can help you push for an acquittal, you should only use it if you genuinely believe your case facts are incorrect. Further, your evidence should provide clarity by showing that you did not have any drugs in your system. For example, you can present a certified drug test report that portrays little to no traces of drugs at the time of the arrest.

See also CALCRIM Number 2305 (“Defense: Momentary Possession of Controlled Substance”): https://www.justia.com/criminal/docs/calcrim/2300/2305/

The Los Angeles Defense Attorney Law Firm (LADALF)

Ninaz Saffari has defended hundreds of individuals over the last seventeen-and-a-half years (as of the date of this writing, August 3, 2022) accused of possessing, using, and/or trafficking narcotics – in cases involving small personal amounts all the way up to several dozen kilos of cocaine or methamphetamine. Please see her “Case Results” on this website’s homepage for examples.