Introduction

In the 1990s, opiates and opioids appeared to alleviate pain without obviously discernible side effects. However, these highly addictive narcotics resulted in serious misuse, leading to a countrywide opiate/opioid epidemic resulting in hundreds of thousands of deaths.

See: https://www.hhs.gov/opioids/about-the-epidemic/index.html

Opioids/opiates are a category of narcotics naturally found in the opium poppy plant, from which illegal “street” drugs like refined opium and heroin derive.

See: https://nida.nih.gov/publications/drugfacts/heroin

And, of course, the current scourge facing the U.S. is the epidemic of fentanyl overdoses.

See: https://www.cdc.gov/drugoverdose/epidemic/index.html

Other categories of opioids include prescription pain relievers like methadone, morphine, hydrocodone, and oxycodone.

Opioids and Opiates Overview

Opioids and opiates are two different types of narcotics. Some people explicitly differentiate between these categories of drugs when speaking about them, while others use the terms interchangeably. Most people tend to call all these narcotics “opioids”.

See: https://nida.nih.gov/research-topics/opioids

The primary difference between these drug categories is how they are made. An opiate is a chemical compound refined or extracted from natural plant matter. Examples of drugs in this category include morphine, heroin, and codeine.

An opioid is a chemical compound generally not extracted from natural plant matter. Most opioids are synthesized or manufactured in the laboratory. Examples of opioids include oxycodone, hydrocodone, and fentanyl.

See: https://www.hopkinsmedicine.org/opioids/what-are-opioids.html

It is most precise to refer to these narcotic categories as opioids and opiates – i.e., the synthetic and the naturally extracted.

Opioids and opiates are utilized medically. A doctor may prescribe them for anesthesia, pain relief, diarrhea suppression, cough suppression, and for treating opioid/opiate disorder. Both drug categories may also be illegally used, of course.

See: https://www.asahq.org/madeforthismoment/pain-management/opioid-treatment/opioid-abuse/

If someone is addicted to (i.e., physically dependent upon) one specific opioid or opiate drug, whether it is illicitly obtained or medically prescribed, they might find switching to another opioid or opiate beneficial in avoiding most withdrawal symptoms. There have been innumerable stories about individuals with legitimate physical pain who become dependent on prescription pain-relieving narcotics, then switch to heroin or illicit opioids when the medically supplied narcotics run out.

See: https://www.ashleytreatment.org/is-heroin-an-opiate/

Heroin-Related Crimes

Heroin is among the most highly addictive opiates, and its popularity has surged in recent years. In the past, heroin was typically consumed through intravenous injection. But today, heroin users generally prefer to smoke or snort it, which has elevated the drug's popularity and accessibility.

Heroin is very addictive and could often results in overdose and death. It is among the most difficult drug addictions to overcome, and most people who stop using it experience major withdrawal symptoms.

Consequently, heroin is considered a controlled drug classified as a Schedule I drug under federal and state law, and therefore will likely always remain illegal. If caught in possession of, selling, trafficking, under the influence of, or being present where heroin is being used, you can face criminal charges.

See federal drug schedules: https://www.dea.gov/drug-information/drug-scheduling

See also: https://www.fordham.edu/student-life/deans-of-students-and-student-life/student-handbook/university-regulations/drug-free-campus-guidelines/federal-trafficking-penalties-for-schedules-i-ii-iii-iv-and-v-except-marijuana/

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

It is unlawful to possess heroin, even if you have just a small amount. If found with heroin for personal use, you can be prosecuted under H.S.C. § 11350. This offense was previously a felony. But the state enacted Proposition 47 (a.k.a., the “Safe Neighborhoods and Schools Act”: https://www.courts.ca.gov/prop47.htm), which reduced simple possession of drugs for personal use to a misdemeanor.

And although simple possession of heroin is a misdemeanor in most cases, your past criminal record could allow the prosecution to charge you with a felony. For instance, if you have any past aggravated felony convictions or are required to register as a sex offender, you could face felony charges for simple possession of heroin.

See: Sex Offender Registration (California Penal Code section 290: https://codes.findlaw.com/ca/penal-code/pen-sect-290.html);

Sex Offender Registration Act: Penalties for Violation (California Penal Code section 290.018:
https://codes.findlaw.com/ca/penal-code/pen-sect-290-018.html); and

Megan’s Law website (see: https://www.meganslaw.ca.gov).

Penalties for Possession of Heroin Conviction (Health and Safety Code section 11350:

If convicted of only misdemeanor possession, you can be subject to:

  • One year in county jail;
  • Informal probation (a.k.a. “summary probation”).
  • Community labor/service;
  • A court-approved outpatient drug treatment program; and
  • 12-step meetings.

For most offenders, the court might agree to sentencing alternatives like drug diversion treatment programs under Prop 36 (https://lao.ca.gov/ballot/2000/36_11_2000.html) or P.C. § 1000 (https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1000).

If you are sentenced to drug diversion, you will avoid jail time and the burden and shame of having a criminal conviction on your record.

Depending on the circumstances and your history, you may also be required to register as a Narcotics Offender (California Health and Safety Code section 11590: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11590.html)

Alternately, however, if you are convicted of a felony, you can always have your attorney petition the court for all the following:

Early Termination of Probation (California Penal Code section 1203.3: https://codes.findlaw.com/ca/penal-code/pen-sect-1203-3.html);

Felony Reduction to a Misdemeanor (California Penal Code section 17(b): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html); and

Expungement (California Penal Code section 1203.4: https://codes.findlaw.com/ca/penal-code/pen-sect-1203-4.html).

A felony possession conviction results in a low, mid, and high prison-term range.

See: Felony Prison Term Not Specified (California Penal Code section 1170(h)(1): https://codes.findlaw.com/ca/penal-code/pen-sect-1170.html): 16 months, or two or three years.

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

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

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

simple Possession of Marijuana (California Health and Safety Code section 11357: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11357.html).

Possessing Heroin for Sale (California Health and Safety Code section 11351: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html)

To curb drug abuse, police officers target narcotics transactions— the selling and buying of illicit drugs — to maximize their efforts.

Two California laws demonstrate this effort. Under H.S.C. § 11351, being in possession of heroin for selling is considered a felony offense.

On the other hand, H.S.C. § 11370.4 dictates the quantities of heroin that can result in significant sentencing enhancements if you’re convicted of possessing more than one kilos of heroin (or cocaine, crack, meth, PCP, etc.).

See: Sentencing Enhancements for Kilogram Quantities of Controlled Substance (California Health and Safety Code section 11370.4: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11370-4.html 

CALCRIM Number 3200 (“Controlled Substance: Quantity -- Pen. Code §§ 1203.07(a)(1), (2) & (4); Health & Saf. Code §§ 11352.5, 11370.4”): https://www.justia.com/criminal/docs/calcrim/3100/3200/

See also: 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)

Possession for Sale of Cannabis (California Health and Safety Code section 11359: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11359.html)

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/

Penalties for Possessing Heroin for Sale (California Health and Safety Code section 11351):

If convicted under H.S.C. § 11351, you can serve 3, 4, or 5 years in prison.

Prosecutors and police always seek evidence that you possessed the heroin for sale, including the heroin amount discovered, the presence of items such as scales and significant amounts of cash, and the availability of packaging indicative of drug sales.

The additional incarceration period outlined under H.S.C. § 11370.4 is triggered when you are arrested and charged with possessing more than one kilogram (2.2 pounds) of heroin. The additional incarceration periods are as follows:

  • If found in possession of more than a kilogram of heroin, you will face three extra years in prison upon a conviction;
  • You will be subject to five additional years’ incarceration if found in possession of four kilograms of heroin;
  • You will face an extra ten years’ incarceration if found in possession of 10 kilograms of heroin;
  • You will face fifteen additional years if found guilty of possessing 20 kilograms of heroin;
  • You will be subject to additional twenty years of incarceration if found guilty of possessing 40 kilograms of heroin; and
  • You will face an extra twenty-five years of incarceration if convicted of possessing 80 kilograms of heroin.

A conviction for possessing heroin for sale or distribution will disqualify you for any drug diversion program.

See: https://www.findlaw.com/state/california-law/california-heroin-laws.html


Transporting or Selling Heroin (California Health and Safety Code section 11352: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11352.html)

Transporting or selling heroin is also considered to be a major felony. This crime includes the following activities:

Transportation;
Importation;
Selling;
Furnishing;
Administering; and
Giving away (without payment or consideration).

physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years.

(b) Notwithstanding the penalty provisions of subdivision (a), any person who transports any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years.

(c) For purposes of this section, “transports” means to transport for sale.

See also: Sale or Transportation of Methamphetamine (California Penal Code section 11379: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11379/


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.

Penalties for Transporting or Selling Heroin Conviction (Health and Safety Code § 11352):

H.S.C. § 11352 transportation can potentially be charged as a misdemeanor under certain circumstances (so this charge is therefore considered to be a “Wobbler” (California Penal Code section 17(b): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html).

Otherwise, and particularly with heroin trafficking, you’ll be charged with a felony and face the following low, mid, and high terms:

2, 3, or 4 years in prison (dealing heroin);

3, 4, or 5 years (transportation or importation);

3, 6, or 9 years (transporting to another county in California).

Possession of Heroin-Using Paraphernalia (California Health and Safety Code section 11364: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11364.html)


Often, heroin users are caught with paraphernalia, such as burnt spoons or hypodermic needles. Under H.S.C. § 11364, possessing drug paraphernalia is prosecuted as a misdemeanor.

See also: CALCRIM Number 2321 (“Forged Prescription for Narcotic: with Possession of Drug -- Health & Saf. Code § 11368”): https://www.justia.com/criminal/docs/calcrim/2300/2321/

CALCRIM Number 2410 (“Possession of Controlled Substance Paraphernalia -- Health & Saf. Code § 11364”): https://www.justia.com/criminal/docs/calcrim/2300/2410/

CALCRIM Number 2411 (“Possession of Hypodermic Needle or Syringe -- Bus. & Prof. Code § 4140”): https://www.justia.com/criminal/docs/calcrim/2300/2411/

CALCRIM Number 2412 (“Fraudulently Obtaining a Hypodermic Needle or Syringe -- Bus. & Prof. Code § 4326(a)”): https://www.justia.com/criminal/docs/calcrim/2300/2412/

Penalties for Possession of Heroin-Using Paraphernalia Conviction (H.S.C. section 11364):

You can face a maximum of one year in county jail. However, you may also be eligible for a drug diversion program.

Defending Against Heroin-Related Criminal Charges

Several legal defenses apply to heroin-related crimes. In many cases, the police find the heroin during an unlawful search of your person, vehicle, or residence. If that is the case, your lawyer can help you file a Motion to Suppress Evidence (California Penal Code section 1538.5: https://codes.findlaw.com/ca/penal-code/pen-sect-1538-5.html), thereby challenging the Constitutional legitimacy of the search and seizure. If the judge grants your motion, he or she will suppress all evidence directly or indirectly collected as a result of the tainted search. In turn, the judge will then likely dismiss your case.

In some instances, heroin is discovered during a search after the judge issues a valid search warrant. If the search warrant was deficient or was issued based on false information provided by police in the affidavit, you may have it invalidated and the resulting evidence suppressed.

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

You can also argue that you did not know the drug was there. If your lawyer can show you were unaware you had heroin in your possession or that the nature of the substance you had was heroin, you cannot be found guilty. For instance, if your friend places drugs in your purse without your knowledge and law enforcement officers find them while conducting their search, your attorney can assert this defense.

Fentanyl-Related Crimes

Fentanyl is among the many narcotics in the opioid category. Medically, it is often used and sold in liquid form as a pain reliever and is usually legitimately administered via intravenous injection. But there also have pills, adhesive patches, and nasal sprays that administer the drug in controlled settings. In appearance, fentanyl is generally a light brown or white powder with a flour texture.

Chemists first synthesized fentanyl in 1960, and the drug itself was authorized for medical purposes in the U.S as a highly effective painkiller in 1968.

See: https://www.pharmaceutical-technology.com/analysis/fentanyl-go-wrong/

Although fentanyl is highly addictive and frequently recreationally used by persons who have been addicted to the narcotic, usually from over-prescription for a past injury.

See: https://nida.nih.gov/publications/drugfacts/fentanyl

To regulate the consumption of fentanyl for recreational purposes, the DEA (Drug Enforcement Administration) classified it as a Schedule II drug, categorizing it as a highly addictive and dangerous drug, although with various medically approved uses.

See: Federal drug schedules: https://www.dea.gov/drug-information/drug-scheduling


Medically, fentanyl is administered as a medicine to cure breakthrough pain, which occurs to severely injured patients despite an existing, continuous pain medicine. Therefore, typical fentanyl patients are adults undergoing severe, painful treatment procedures for health conditions such as nerve damage, burn wounds, and cancer.

Since it is highly addictive, fentanyl is classified as a controlled substance.

See: https://www.deadiversion.usdoj.gov/drug_chem_info/frs.pdf

This means you can get in serious legal trouble if caught with even a single pill without a valid prescription.

See, e.g.: Forging or Altering a Prescription (California Health and Safety Code section 11368 (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11368.html)

CALCRIM Number 2320 (“Forged Prescription for Narcotic -- Health & Saf. Code § 11368”): https://www.justia.com/criminal/docs/calcrim/2300/2320/

CALCRIM Number 2321 (“Forged Prescription for Narcotic: with Possession of Drug -- Health & Saf. Code § 11368”): https://www.justia.com/criminal/docs/calcrim/2300/2321/

Also, based on the fentanyl amount in your possession, you can face possession for sale or simple misdemeanor possession charges (see below). And even if you have a valid prescription, you can still get in legal trouble requiring you to prove you had a good reason to possess it.

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

Simple possession of fentanyl is an offense in California punishable under H.S.C. § 11350. Whereas most fentanyl possession cases are misdemeanors, you will be subject to felony charges if you have a certain criminal background.

Criminal backgrounds that warrant a felony fentanyl possession charge include:

  • Extremely violent offenses such as rape or murder.
  • Sex crimes that require registration as a sex offender.

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

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


Penalties for Fentanyl Possession Conviction (Health and Safety Code section 11350):

Most fentanyl possession cases are charged as misdemeanors, which carry a maximum of twelve months in county jail.

Misdemeanor fentanyl possession convictions can also be punishable by mandatory participation in a one of the following programs:

Drug Diversion (California Penal Code section 1000: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1000)

 Proposition 36 Drug Treatment Diversion Program: https://lao.ca.gov/ballot/2000/36_11_2000.html

“Drug Court”: https://www.courts.ca.gov/5979.htm

 Felony convictions carry discretionary prison terms ranging of two, three, or four years in prison.

Possessing Fentanyl for Sale (California Health and Safety Code section 11351: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11351.html)

California Health and Safety Code § 11351 makes it illegal to possess fentanyl with an intent to sell or distribute it.

Penalties for Possessing Fentanyl for Sale Conviction (Health & Safety Code section 11351):

A felony conviction for possessing fentanyl with the intent to distribute is punishable under a separate statute: Felony Prison Term Not Specified (California Penal Code section 1170(h)(1): https://codes.findlaw.com/ca/penal-code/pen-sect-1170.html), which provides low, mid, and high terms of 16 months, or two or three years.

In addition, severe penalty enhancements are triggered if you are convicted of possessing more than a kilogram of the drug.

See: Sentencing Enhancements for Kilogram Quantities of Controlled Substance (California Health and Safety Code section 11370.4: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11370-4.html

Since possessing fentanyl for sale is not an offense that hinges on personal narcotics use, drug diversion programs are not a sentencing option.

Fraudulently Prescribing Prescription Drugs (Health and Safety Code section 11153: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11153.html):

If you are a doctor and you write unauthorized or otherwise unlawful/illegal drug prescriptions, you would be prosecuted under this statute for prescription fraud.

See also: Forging or Altering a Prescription (California Health and Safety Code section 11368 (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11368.html)

CALCRIM Number 2320 (“Forged Prescription for Narcotic -- Health & Saf. Code § 11368”): https://www.justia.com/criminal/docs/calcrim/2300/2320/

CALCRIM Number 2321 (“Forged Prescription for Narcotic: with Possession of Drug -- Health & Saf. Code § 11368”): https://www.justia.com/criminal/docs/calcrim/2300/2321/

Penalties for Fraudulently Prescribing Prescription Drugs (H.S.C. section 11153):

This crime is also wobbler, which means you can face a year in county jail for a misdemeanor conviction, and 16, 24, or 36 months pursuant to (California Penal Code section 1170(h)(1): https://codes.findlaw.com/ca/penal-code/pen-sect-1170.html).

Defending Against Fentanyl Drug Charges

You have a right to Constitutional protection whenever are charged with a drug crime, including protection against unreasonable searches and seizures under the Fourth Amendment. The police must have reasonable suspicion to search your person, vehicle, or home for illegal prescription drugs and other narcotics. An unwarranted search triggers the potential suppression of any evidence seized as a result thereof.

You could also prove that you had a valid prescription for the drug and that the quantity in your possession was consistent with the prescription and its purpose.

Other legal defenses may also apply to these drug charges, such as contesting the supposed weight or substance found.

The Los Angeles Defense Attorney Law Firm (LADALF)

LADALF lead counsel Ninaz Saffari is highly respected by her professional peers, including prosecutors, as well as judges, for being one of the most knowledgeable and skilled illegal narcotics and prescription drug attorneys in the county. When handling one of these cases, she often works with experts, including medical experts, to fight against fentanyl and opioid prosecutions.