The scientific name for Ecstasy is 3, 4 methylenedioxymethamphetamine or MDMA. It has other various street names including “Molly,” “X,” “E,” and “XTC.” It was originally developed as anti-coagulant and later prescribed, though not FDA approved, for treating PTSD. It was not included as a Schedule I drug until 1985 when reported fatalities and serious medical issues from its use became a concern.
MDMA, or Ecstasy1, is a popular club drug as it is both an amphetamine and a mild hallucinogen. It is valued for producing a euphoric and energizing effect, heightening the senses. It can also produce feelings of empathy with users wanting to connect with others around them in a warm way. The drug releases Serotonin in the brain, producing the happiness feeling that gives the substance its common name.
A prominent danger in using the drug is that it is not uncommonly laced with other Schedule I drugs such as heroin, cocaine, ketamine and methamphetamines but even with caffeine, rat poison or anything else so that users may not be ingesting what they thought. Complications in using the drug include:
- blurred vision
- clenched teeth
- sharp increase in body temperature
More serious complications are seizure, organ failure, irregular heartbeat, extreme dehydration and death.
It is unlawful to possess a controlled substance without a valid prescription, if available, or any other such drug for which no prescription may be obtained such as Ecstasy2.
A violation of 11377 HS is a “wobbler” so that the prosecutor has discretion in charging you with either a misdemeanor or felony. You likely face felony charges if you have multiple drug possession convictions or at least one prior intent to sell conviction or if there are other aggravating circumstances regarding your arrest or case.
A misdemeanor conviction has a maximum jail sentence of up to one year in county jail and/or a fine up to $1000.
A felony conviction carries 16 months 2 or 3 years in state prison and a fine up to $10,000.
A conviction under this code section allows a defendant be eligible to seek a diversionary program where successful completion can result in dismissal of your charges.
Possession of any controlled substance is illegal (unless you have a valid prescription) so obviously an attempt to sell it is also unlawful3. The sale or possession of Ecstasy for the purpose of selling it is a straight felony under California Penal Code 11378. Y
ou are presumed to possess it for sale if you have a sufficient quantity of it or an amount that no reasonable person would assume is for your own personal use though this can be an issue for the trier of fact and an issue over which experts may differ4.
This code section prohibits transporting a controlled substance like Ecstasy, which means bringing or importing it from outside the state5. It also prohibits your giving or selling the drug to someone or “administering” it, which means giving it directly to someone who then ingests or inhales (snorts) the substance6.
A violation under this section is a straight felony and has harsher terms than a violation of 11378 HS. If convicted, you face 2, 3 or 4 years in state prison and a fine of up to $10,000.
But if you transport or carry the drug across at least two California counties, the court will enhance your sentence to 3, 6 or 9 years in state prison.
Aggravating circumstances that will undoubtedly lead a court to sentence you to the maximum prison term are if you furnish, give away or transport to:
- A pregnant woman
- An individual who has a prior violent felony conviction
- A person being treated for a mental disorder, illness or condition
A charge of possession of a controlled substance like Ecstasy makes you eligible for any of California’s diversionary programs under Proposition 36 and Penal Code 1000 that offers deferred judgment or diversion7. Those with simple possession charges are also eligible to participate in California’s drug courts.
You are not eligible if you possessed Ecstasy for sale under 11378 HS or transporting, giving away or administering it under 11379 HS. Qualifications for diversion include:
- No prior possession conviction with intent to sell
- No serious probation violation or parole violations
- You did not participate in a drug diversion program within 5 years of the current offense
- No prior felony convictions within 5 years of the current offense
Under PC 1000, you have to first enter a plea of guilty but then the judge will defer further proceedings for up to 3 years while you complete an approved drug treatment. You must not commit any further criminal offenses during this time and pass all drug tests. During the course of your treatment, progress reports are periodically submitted to the court. If you complete the treatment and satisfy all conditions, the court will dismiss the charges.
Proposition 36 was designed for defendants with drug possession charges but who committed a violent or serious felony. You still plead guilty to the underlying charge and the court will defer further proceedings similar to PC 1000 except that you are under formal probation and any conditions imposed by the court, which can be difficult to follow for many defendants. Completion of your treatment program does not guarantee the court will dismiss the charges but it is unlikely you will spend any time incarcerated.
Another program is participation in a California drug court. You still must not have a record of past possession with intent to sell convictions, have no previous felony convictions in the past 5 years and no participation in a diversionary program within this time. Drug courts can tailor their programs and conditions to your unique situation with the goal of ending your addiction or dependence and getting your life back on track.
For instance, the court may require that you actively seek employment, remain employed, abstain from alcohol and drugs, meet with a drug counselor or drug therapy group and report regularly to your probation officer. If you complete all conditions to the satisfaction of the court, it will dismiss your charges.
Lack of Proof of Possession
The DA must prove that you knew or were aware of the presence of the drug on your person or that you were in constructive possession. Direct or actual possession means the drugs were found on you and no one else had equal access. Constructive possession means you had control over the drugs but that you also were aware of them and their nature. You could be at a friend’s house when police appear and search and find drugs and be charged with possession. However, mere proximity to an illegal substance is not sufficient to convict you.
The DA has the burden of proving beyond a reasonable doubt that you were aware that the drug was in your presence and that it was a controlled substance. If someone else had control over your car, jacket or suitcase where the drugs were found, then this burden may not be satisfied.
Facts supporting knowledge of the nature of the drug in your possession might be that you were given the substance in a club setting where its use was well known or where previous arrests were made or you have a prior conviction for drug possession. Otherwise, the DA might not be able to show that you knew the character of the drug.
Lack of Intent to Sell
The DA can attempt to convict you for intent to sell based on the quantity you possessed. But if no baggies, cash, scales or similar paraphernalia associated with someone in the business of selling controlled substances are found with you, then you might convince a court or jury that you only possessed it for personal use. If so, you may be eligible for a diversionary disposition or a less severe sentence and an opportunity to have it expunged.
Illegal Search and Seizure
Law enforcement officers are enforcers of the peace and the law and as such must respect your civil and constitutional rights when stopping or detaining you. A peace officer may generally not search you, your home or car in the absence of a warrant unless there are certain circumstances that allow it. However, you might be subject to a pat down search for weapons but only if the police possessed a “reasonable belief based on specific articulable facts which, taken together with the rational inferences to be drawn from those facts reasonably warranted the officer into believing that (you) (are) dangerous and may gain immediate control of weapons”8. This is a standard that is less than probable cause to arrest someone.
If you are arrested, then you are subject to a search of yourself and an allegedly limited search of the immediate area for weapons as well.
However, it is not that unusual for an officer to violate the rights of criminal suspects by forcing them to submit to a search or by thoroughly searching a person or his home or car who is suspected of a crime without probable cause to do so or pursuant to a warrant. Planting of evidence does occur as well.
If you are stopped for a traffic violation, your car may not be searched unless the officer has probable cause to believe you are carrying controlled substances in your car, weapons or other evidence of a crime, usually by it being in open view.
In other cases where officers suspect that you may be possessing illegal drugs or are selling them, then a search warrant is usually obtained. Search warrants limit the extent, place, time and scope of the search. If officers are looking for a drugs in someone’s home, they may not search your car merely because it was parked next to it or you were in the house that was being searched.
If a constitutional violation is suspected, your attorney will file a motion to suppress the incriminating evidence.
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You can seek post-conviction relief pursuant to Penal Code 1203.4 if you were convicted of a misdemeanor under Health and Safety Code 11377. California law allows expungement of a conviction so long you did not serve time in state prison. With an expungement, you can state under oath that you have not been convicted of that offense.
However, if you were convicted of a felony under this section, you could petition the court to reduce it to a misdemeanor under Proposition 47 if it was simple possession. You can also be resentenced as a misdemeanor and any time sentenced would be served in county jail rather than state prison. You can also move the court to reduce your felony conviction under 11377 HS (since it is a wobbler) to a misdemeanor under PC 17(b) provided you served no time in state prison.
An expungement gives you post-conviction relief from many of the obstacles convicted felons face after serving their time. Few employers will hire or landlords rent to convicted felons. A felony will prevent you from maintaining or acquiring a professional license. One of the main benefits of expungement that it prevents any member of the general public from seeing that you were convicted of a crime since your expunged conviction will not appear on a public database. Since employers and landlords routinely use online services that are linked to certain criminal databases to conduct criminal background checks, this obstacle to being considered is removed.
Eligibility for Expungement
As indicated herein, if you were convicted under 11377 HS for a misdemeanor and did not have your charges dismissed in a diversionary program, then you qualify for an expungement. You may petition the court so long as you satisfy these other conditions:
- completion of all conditions of your sentence and probation
- no commission of a subsequent felony
- you have no criminal charges pending
- you committed no serious violation of your probation
If your conviction was for sale or intent to sell, and you served time in state prison, you are not eligible for an expungement of your conviction. You may be able to get a Certificate of Rehabilitation that can offer you some of the benefits of an expungement except that your criminal conviction is still on your public record. It does offer potential employers or landlords a record of your rehabilitation and sound character since your conviction.
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- See Also – The DEA Drug Fact Sheet – Drug Enforcement Administration [↩]
- People v. Barnes (1997) 57 Cal.App.4th 552, 556 [↩]
- People v. Parra (1999) 70 Cal.App.4th 222,226 [↩]
- People v. Rubacalba (1993) 6 Cal.App.4th 62, 65-67 [↩]
- People v. Emmal (1998) 68 Cal.App.4th 1313, 1316; People v. Meza (1995) 38 Cal.App.4th 1741, 1746 [↩]
- People v. Emmal (1998) 68 Cal.App.4th 1313, 1316 [↩]
- Gardner v. Schwartzenegger (2009) 178 Cal.App.4th 1366, 1370 [↩]
- Terry v. Ohio [↩]