What is “Possession of a Controlled Substance”?

Controlled substances are any drugs prohibited from use or possession by the federal or California state governments. This drug can either be a narcotic or prescription medication. If it is the latter, its use or possession without a valid medical prescription will get you charged for this crime.

See CALCRIM Number 2304 (“Simple Possession of Controlled Substance -- Health & Saf. Code §§ 11350, 11377”: https://www.justia.com/criminal/docs/calcrim/2300/2304/).

Some examples of narcotics that are deemed to be controlled substances include cocaine, heroin, peyote, and LCD. Some examples of prescription medication categorized as controlled substances include hydrocodone, oxycodone, codeine, Xanax, Valium, and ketamine.

Therefore, if law enforcement officers believe that you owned, possessed, or had control over a controlled substance, you will be charged with the criminal offense of possession of a controlled substance. The primary laws stipulating this offense include California Health and Safety Code section 11350: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11350.html) and the the United States Controlled Substance Act (21 U.S.C. § 801, et. seq.: https://www.law.cornell.edu/uscode/text/21/801).

See also: https://www.dea.gov/drug-information/csa.

Specifically, Health and Safety Code section 11350 prohibits possession of a prescription drug without a valid doctor’s prescription. On the other hand, the U.S. Controlled Substances Act prohibits the overall possession of controlled substances.

Note that if you are found in the possession or control of either stimulants or marijuana, you will not be charged under California Health and Safety Code section 11350. Possession of marijuana is prohibited explicitly by California Health and Safety Code section 11357 (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11357.html), while California Health and Safety Code section 11377: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-11377.html) prohibits possession of stimulants such as crystal meth.

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

What is Possession of an Analog of a Controlled Substance?

Both California Health and Safety Code section 11350 and the U.S. Controlled Substances Act (“USCSA”) prohibit the possession of an analog of a controlled substance. An analog of a controlled substance is any substance that has:

  • A similar chemical structure to a particular controlled substance;
  • An equal or greater effect on the human body as that of a controlled substance.

Therefore, just like possession of a controlled substance, possession of an analog of a controlled substance is a criminal offense. This offense attracts equal penalties upon conviction to that of possession of a controlled substance.

See also 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/)

Manufacture of an Imitation Controlled Substance (California Health and Safety Code section 109575: https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-109575.html).

What the Prosecution Must Prove to Convict You for Possession of a Controlled Substance/Drugs/Narcotics

The prosecutor must prove each of these four elements beyond a reasonable doubt for you to be convicted of possession of a controlled substance:

  • You possessed a controlled substance/drug/narcotic;
  • You knew about the presence of the controlled substance;
  • You knew that the substance was a controlled substance; and
  • The controlled substance was of a usable amount.

You Possessed a Controlled Substance

First, the prosecutor must prove that the drug was indeed a controlled substance. To determine that you actually possessed the controlled substance, the prosecutor must prove you exercised some form of control over it.

The prosecutor need not show the court that you actually touched, held, or had any form of physical contact with the drug. So long as he or she demonstrates to the judge or jury that the controlled substance was inside your bag, closet, or storage unit, for example, he/she will have proved this element.

See CALCRIM Number 2304 (“Simple Possession of Controlled Substance -- Health & Saf. Code §§ 11350, 11377”: https://www.justia.com/criminal/docs/calcrim/2300/2304/).

Note that two or more people can be deemed to be jointly possessing a controlled substance if the prosecutor proves they both exercised control over the drug.

Please note that merely agreeing to purchase a controlled substance does not equate to possession. Again, the operative standard is that you exercised control over it. Therefore, you should be acquitted if you have been charged with possessing a controlled substance simply because you had agreed to purchase a narcotic or a prescription medication without a valid prescription.

You Knew about the Presence of the Controlled Substance

If you can produce evidence showing that you were ignorant of the presence of the controlled substance, you should be acquitted at trial.

For instance, perhaps someone else planted the drug inside your belongings. As long as you prove you did not know you were in possession of a controlled substance, you cannot be convicted.

You Only Temporarily Possessed the Controlled Substance

If your control or possession of the drug was only momentary, then the prosecutor will not be able to satisfy the most critical element of this offense.

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

You Knew that the Drug was a Controlled Substance

The prosecutor must prove to the judge or jury that you had knowledge of the fact that the substance you were in possession of was a controlled one. You should be acquitted if you can prove you didn't know this fact. For example, your attorney can help you explain to the judge or jury that you falsely believed the prescription medicine you carried was obtained via a doctor's prescription.

Note that the court does not require the prosecutor to prove you knew what type of drug you were carrying. As long as he/she proves you knew the substance you were in possession of was a controlled substance, you can be convicted.

The Controlled Substance was of a Usable Amount

The prosecutor must prove that the controlled substance you possessed was of a usable amount. Simply put, the prosecutor must illustrate to the judge or jury that you possessed an amount of a controlled substance that an individual can actually use.

Therefore, you cannot be convicted of the criminal offense of possession of a controlled substance if you had only carried debris or traces of the drug. Also, note that the phrase ‘usable amount’ does not mean that the amount of controlled substance must be capable of intoxicating an individual.

See Defenses to Possession of a Controlled Substance: https://www.findlaw.com/criminal/criminal-charges/drug-possession-defenses.html.

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

In California, the criminal offense of possessing a drug/narcotic/controlled substance is categorized as a misdemeanor – that is, so long as the primary reason you possessed the drug was for personal use.

On the other hand, if you possessed a controlled substance with an aim to sell it, you will most likely be charged with the criminal offense of possession of a controlled substance as a felony.

See 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)

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).

Also, you will face felony charges for possession of a controlled substance if you already have a previous conviction for a serious felony or a sex criminal offense.

See also 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.

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/)

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/)

The punishment for felony possession of a controlled substance is an imprisonment term of up to 36 months in the county jail (not state prison).

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

If you are convicted of even misdemeanor possession, then according to this California statute, you must notify the local chief of police or sheriff of your residence address within 30 days of moving there, or within 30 days of you being released from jail for most drug convictions.

See also Termination of Narcotics Offender Registration: https://oag.ca.gov/sites/all/files/agweb/pdfs/info_bulletins/19-06-cjis.pdf

Immigration Consequences for Possession of a Controlled Substance Conviction

If you are a non-U.S. citizen, a conviction of this offense may have negative immigration consequences. For instance, you may:

  • Get deported; or
  • Become classified as ‘inadmissible’.

See immigration consequences for drug convictions: https://www.ilrc.org/sites/default/files/resources/chart-note_08-controlled_substances.pdf.

Loss of Your Gun Rights

According to California criminal law, convicted felons automatically lose their right to own or possess firearms. The same applies even if you were only convicted of a misdemeanor if the prosecutor can convince the court that you are actually addicted to drugs (as opposed to merely being an occasional recreational user).

And, of course, regardless of the type of felony you were convicted of, the firearms ban will last for the rest of your life.

See Firearms Prohibiting Categories: https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/prohibcatmisd.pdf.

Otherwise, a misdemeanor conviction will not result in loss of your gun rights.

However, even if you are convicted of a felony possession charge, you may still be able to eventually (i.e., after you successfully complete formal probation) to recover these rights if you can get your Felony Reduced to a Misdemeanor (California Penal Code section 17(b): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html).

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

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

Defenses to a Charge of Possession of a Controlled Substance/Drugs/Narcotics

You can raise various legal defenses to fight criminal charges for possession of a controlled substance. Some of the most common defenses include:

  • No possession;
  • Unlawful search;
  • Lawful prescription; and
  • Entrapment.

No Possession

If the facts work out for you, you can simply argue that you didn't possess the controlled substance. Your attorney will attack the credibility of the prosecutor’s evidence that you did.

Unlawful Search

Our federal Constitution provides for the right to be free from unreasonable searches and seizures, and that warrants require probable cause. Before a police officer conducts a search, he/she must obtain a valid warrant. Any search conducted without a search warrant is unlawful.

See Fourth Amendment of the U.S. Constitution: https://constitution.congress.gov/constitution/amendment-4/.

If the police found any incriminating evidence in an unlawful search, your attorney can petition the judge to have this evidence excluded from the court record. This is known as “fruit of the poisonous tree” evidence that gets suppressed via:

Motion to Suppress Evidence (California Penal Code section 1538.5: https://codes.findlaw.com/ca/penal-code/pen-sect-1538-5.html);

Motion to Dismiss (California Penal Code section 995: https://codes.findlaw.com/ca/penal-code/pen-sect-995.html); and

Motion In Limine (California Evidence Code section 350: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EVID&sectionNum=350; California Evidence Code section 352: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=352.&lawCode=EVID).

If the court grants your motion, then there is a high likelihood that the Deputy District Attorney (if the Los Angeles County District Attorney's Office (DA’s Office) (https://da.lacounty.gov) is prosecuting) or the Deputy City Attorney (the Los Angeles City Attorney's Office (CA’s Office) (https://www.lacityattorney.org) in charge of your case will dismiss it.

Lawful Prescription

You could use this defense if you had a valid prescription for the medications found on your person or in your control.

Entrapment

If an undercover officer or law enforcement agent (including an informant) sold you a personal-use amount or quantity of a controlled substance, and you were not predisposed to do so (for example, you never did drugs before and the undercover pressured you to buy it), then this would be a valid defense.

Related Offenses to Possessing a Controlled Substance/Drugs/Narcotics

There are only three of numerous criminal offenses that are related to possessing controlled substances:

California H.S.C. § 11351 (Possession of Controlled Substances for Sale):

If you allegedly possessed a controlled substance and the prosecutor believes that you intended to sell it, you will be charged under H.S.C. § 11351.

This is a “Wobbler” (California Penal Code section 17(b): https://codes.findlaw.com/ca/penal-code/pen-sect-17.html), which, again, means the prosecutor can charge you with a felony or a misdemeanor, depending on your circumstances.

If you end up with a misdemeanor conviction, then at most you’ll get a year in county and possible informal probation. For a felony, however, you’ll face low, mid, and high terms of 24, 36, and 48 months but also in the county jail. This does not account for any “aggravating factors”.

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)

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).

California H.S.C. § 11352 (Selling and Transporting Controlled Substances):

H.S.C. § 11352 criminalizes the sale and transportation of controlled substances. Specifically, this law prohibits any of the following activities:

  • Selling a controlled substance;
  • Giving a controlled substance to another person;
  • Administering or furnishing drugs to someone else;
  • Transporting controlled substances with the intent to sell it; and
  • Making an offer to engage in any of the above-listed activities.

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)

Sale, Furnishing, Administering, or Importing of Cannabis (California Health and Safety Code section 11360(a): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11360.&lawCode=HSC).

If you engage in any of these activities and you arrested, you will automatically face a felony charge. The maximum prison-term range for a first time offense can range from three to nine years’ incarceration.

California H.S.C. § 11550: Being Under the Influence of Controlled Substances:

California H.S.C. § 11550 states that it is unlawful to be under the influence of a controlled substance. To secure your conviction for this offense, all the prosecutor needs to prove is that you were intoxicated by an illicit drug. The prosecutor does not need to prove that you were in possession of the drug.

The criminal offense of being under the influence of a controlled substance is categorized as a misdemeanor. Its punishment is a county jail term of 180 days to a maximum of one year in the county jail.

However, if this is your first drug offense, the court will likely grant you one of the following:

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

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

The Los Angeles Defense Attorney Law Firm (LADALF)

Ninaz Saffari, our #1 attorney, has successfully represented hundreds of clients for most types of drug crimes, ranging from simple possession up to federal trafficking cases. For lesser offenses such as being under the influence of drugs, 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), and possession, Ninaz works closely with the top private substance abuse placement counselor in SoCal to find our client an in-patient or out-patient program that will convince your judge to give you diversion in lieu of jail (and a misdemeanor instead of a felony).