Business & Professions Code 4060 “Explained”

Under Business & Professions Code 4060, you may be in legal possession of a controlled substance so long as it was prescribed by a physician, veterinarian or naturopathic doctor under certain circumstances.

How Does The Prosecutor Prove The Crime

This code section also prohibits possession if you do not have a medical or pharmacy license or other particular certification allowing you to dispense narcotic medications.

In order to be convicted under 4060 BP, the DA must prove each element of this offense. These consist of the following:

You possessed or exercised control over a controlled substance

You possess a certain item or drug when it is on your person or attached to you such as in a purse, backpack or luggage that you are carrying. You are in constructive possession or have control over the object or drug if the purse, backpack or luggage was yours though it was not in your immediate presence or attached to you.

If the drug was found during a valid search, it must have been in an area under your exclusive control such as your car, file cabinet or dresser drawer. If you ingested the drug and exhibit or show signs that you are under its influence, you can be convicted of having possessed it illegally so long as you had no valid prescription.

You were aware of the drugs presence

Police may find a drug on your person or in your possession but the DA still has to prove you were aware of its presence and knew or should have known that it was a controlled substance. If the drug was found in a jacket you loaned to someone or a girlfriend borrowed your coat or purse and drugs were found, you can argue you had no knowledge of its presence therein.

So far as it being a controlled substance, you might have reasonably believed it was an over-the-counter medication if you told police you were given it by someone unless it is a powdery substance indicating it is likely cocaine or heroin. Having a prior record of possession of this or even another controlled substance will make it more likely you were aware of the nature of the drug.

You were aware of the nature of the drug as a controlled substance
There was a sufficient quantity of the drug that could be used, AND

As with any illegal drug, you must have possessed at least enough of it that it could be used as a drug even if it may not be enough to produce a narcotic effect. For instance, a prescribed drug like hydrocodone or oxycodone that is identified as such must be in a sufficient amount.

Traces or residue of it is insufficient unless you had ingested it and were exhibiting signs of being under its influence.

You did not have valid prescription or the drug was for your use only

You are immune from prosecution under Business and Professions Code 4060 if you possessed a valid prescription for the controlled substance. If none is found or the DA shows that the prescription you have was forged or altered, then you do face prosecution.

If the bottle or container that holds the drugs had more than what was prescribed to you, then you might be found criminally liable for illegal possession as well.

Legal Defenses

Temporary Possession of the Drug

If you possessed the drug only for the purpose of turning it over to law enforcement or to dispose of it, then you have a valid defense. This does not apply if police show up at your apartment or home and you are caught trying to flush it down the toilet or were scattering it in the backyard.

Lack Of Knowledge

If you can show that the jacket, purse or luggage of yours was out of your control or possession and in someone else’s possession for a time, then you might be able to convince the trier of fact that you had no knowledge of or were unaware the drug found in it was in your possession.

Also, identifying a drug like oxycodone, hydrocodone or a Quaalude may not be possible to a layperson unless it is clearly marked as such. The DA might still be able to demonstrate knowledge if you have a prior record for possession or sale of such drugs or if you were fleeing police or refused drug testing.

Lack Of Possession

You may not have been in possession of the drug if someone else had control or access to the area where it was found. You may also have abandoned the drug days earlier but someone identified you as having had possession at some point. If you are arrested, you can argue you lacked possession or control of the drug on the day you were arrested.

Illegal Search and Seizure

Police overstep their authority or the law at times when arresting and/or searching persons they suspect of having committed a crime. You must be legally detained and only subject to a limited search under certain circumstances.

If you are stopped for a traffic violation, your car may not be searched unless officers have probable cause to believe you are carrying controlled substances in your car.If you are validly arrested, you can be searched incident to your arrest but only of your person and the immediate area.

Otherwise, your car, home or business may not be searched absent a search warrant that is supported by an affidavit indicating probable cause. Search warrants limit the extent, time and scope of the search.

If officers are looking for financial documents, for example, rummaging through your laundry or even your sock drawer likely exceeds the scope of the warrant. If the officer who drafted the affidavit and signed it fabricated facts to obtain the warrant, any evidence seized will be deemed inadmissible.

Penalties & Sentencing

Misdemeanor or Felony

A violation of Business and Professions Code 4060 is a misdemeanor carrying up to one year in county jail and/or a fine up to $1,000.

It is a felony, however, if you have a criminal history of violent felonies or sex offenses against a minor 14 years of age or younger, or are a registered sex offender. In these cases, you face 16 months, 2 or 3 years in state prison.

Pretrial Diversion

Drug diversion or pretrial diversion is possible for certain drug possession crimes if you are deemed eligible under Penal Code 1000 and/or Proposition 36. You are not eligible if you possessed the drugs for sale or were engaged in a violent act accompanying the offense. In other words, you possessed the controlled substances for your own personal use and you were not involved in any sexual or violent behavior. Other criteria include:

Under PC 1000, you will enter a plea of guilty but the judge will defer imposition of sentence and all other proceedings for at least 18 months to 3 years while you participate in and complete an approved drug treatment program of at least 20 hours.

During the course of your treatment and deferred period, you will be periodically assessed and a progress report submitted to the court. If you are successful in completing the treatment and commit no further offenses and pass any drug test, the court will dismiss the charges.

Prop 36

Proposition 36 is also a deferred judgment alternative available for those with violent or otherwise serious felony convictions though its effect can be dissimilar from PC 1000. You still, however, must not have met any of the non-qualifying criteria listed above.

You still must plead guilty to the underlying charge and the court will defer further proceedings except that you are under formal probation and any conditions that it entails. Even if you satisfy all conditions, the court may still decide to not dismiss the charges though you will likely not spend any time in jail or prison.

Drug Courts

Another program is participation in any of California’s over 200 drug courts1. Your eligibility is similar to that for pretrial diversion. The counties where the drug courts operate may have their own unique programs for adults or those adults under 25, for example, where specific programs are delineated for your participation and where you are required to spend a certain time participating in these programs.

This may include intensive counseling, attendance in school, maintaining employment, meeting with your probation officer on a regular basis and submitting to random drug testing. Upon completion, your charges are dismissed.

Expungement For 4060 BP

Post-conviction relief by way of an expungement is available in most cases for a conviction under Business and Professions Code 4060. A felony conviction under this section, however, does result in state prison time, which disqualifies you for expungement.

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As indicated herein, if you were convicted of a misdemeanor under Business and Professions Code 4060, you are eligible to have it expunged. If you are convicted of a felony, though, your attorney may be able to convince the court to sentence you to county jail if possible in the event you are sentenced to be incarcerated. Otherwise, your felony is not eligible for expungement though there are post-conviction relief remedies that you may pursue.

Related Offenses

Business and Professions Code 4324

This code section bars anyone from obtaining prescription drugs by forging or altering a prescription or signing a physician’s name. It is a wobbler offense. If convicted of a misdemeanor, you face up to a year in county jail and/or a fine up to $1000. If a felony, it carries 16 months, 2 or 3 years in jail and/or a fine up to $10,000.

Health and Safety Code 11173

It is illegal to obtain narcotics or a controlled substance by fraud, misrepresentation or deceit. An example is pretending to be a health care provider and calling a pharmacy to issue a prescription. This is also the “doctor shopping” code section whereby an individual attempts to obtain multiple prescriptions from different physicians for the same drug.

It is also a wobbler offense. As a misdemeanor it is punishable by up to one year in county jail and/or a fine up to $1000. As a felony, you face 16 months, 2 or 3 years in jail and/or a fine up to $10,000.

Health and Safety Code 11350

This code section is very similar to 4060 BP in that it prohibits possession of a controlled substance including those without a valid prescription. Possession of narcotics without a valid prescription is a misdemeanor. The only difference between the sections is that 4060 BP addresses prescription medications only.

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  1. Penal Code 1000.5 – The presiding judge of the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender, may agree in writing to establish and conduct a preguilty plea drug court program pursuant to the provisions of this chapter, wherein criminal proceedings are suspended without a plea of guilty for designated defendants. The drug court program shall include a regimen of graduated sanctions and rewards, individual and group therapy, urine analysis testing commensurate with treatment needs, close court monitoring and supervision of progress, educational or vocational counseling as appropriate, and other requirements as agreed to by the presiding judge or his or her designee, the district attorney, and the public defender. If there is no agreement in writing for a preguilty plea program by the presiding judge or his or her designee, the district attorney, and the public defender, the program shall be operated as a deferred entry of judgment program as provided in this chapter. (b) The provisions of Section 1000.3 and Section 1000.4 regarding satisfactory and unsatisfactory performance in a program shall apply to preguilty plea programs. If the court finds that (1) the defendant is not performing satisfactorily in the assigned program, (2) the defendant is not benefiting from education, treatment, or rehabilitation, (3) the defendant has been convicted of a crime specified in Section 1000.3, or (4) the defendant has engaged in criminal conduct rendering him or her unsuitable for the preguilty plea program, the court shall reinstate the criminal charge or charges. If the defendant has performed satisfactorily during the period of the preguilty plea program, at the end of that period, the criminal charge or charges shall be dismissed and the provisions of Section 1000.4 shall apply. []

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