8 Things You Should Know About “Drug Possession”

Below I will explain everything you need to know about drug possession charges in California.

Health & Safety Code 11350 Defined

Every person who possesses

1. Any controlled substance as listed, or
2. Any controlled substance, which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state¹, shall be punished by imprisonment.².

This charge is a misdemeanor under most circumstances.

List of Controlled Subtances Covered Under H&S Code 11350

Below is a list of controlled substances which are a crime to possess under health and safety code 11350 hs.

• Opiates and Opium Derivative: Codeine Methylbromide, Desomorphine,Heroin, Methyldihydromorphine,Morphine methylbromide, Myrophine, Nicocodeine, Oxycodone, Hydrocodone (Vicodin), Dihydrocodeine, Methadone, Psilocybin (mushrooms), et al
• Hallucinogenic Substances: Dimethoxy-Amphetamine, Marijuana, Mescaline, Peyote,Psilocybin, Gamma hydroxybutyric acid, Cocaine, Cocaine base, Fenethylline, Ethylamphetamine, et al.
• Stimulants: Amphetamine, Methamphetamine, Dimethylamphetamine, Benzphetamine, Methylenedioxymethamphetamine (MDMA, ecstasy, “molly”)³, et al.
• Depressants: In any compound or mixture, including: Amobarbital, Phenylcyclohexyl Piperidine PCP, Pphenylcyclohexyl Morpholine (PCM), Piperidinocyclohexane Carbonitrile (PCC), Lysergic acid, et al.,
• Steroids: In any compound or mixture, including:  Androisoxazole, Dihydromesterone, Nandrolone, Testosterone, Chorionic Gonadotropin, Ketamine.

How Does The Prosecutor Prove The Charge:

If you are charged with possessing cocaine (for example), a controlled substance, the prosecutor must prove the following to establish that you are guilty of drug possession:

• You unlawfully possessed a controlled substance⁴;
• You knew of its presence
• You knew of the substance’s nature or character as a controlled substance⁵;
• The controlled substance was cocaine (for example);
• The controlled substance was a useable amount⁶.

Example of Knowing of Its Presence

Paris is stopped by a police officer in the street, on suspicion of being drunk in public. While stopped, the officer asks Paris whether she had any drugs or alcohol in her pockets, purse or otherwise.

Paris empties her pockets and hands her handbag over to the officer. The officer then opens her purse and sees what he believes to be a “baggy” of cocaine.

When questioned, Paris admits to the “white stuff” being hers, and is subsequently arrested for possession of a controlled substance.

Based on these circumstances, the prosecutor is likely able to prove this charge. 

The prosecutor does not need to prove that the defendant knew which specific controlled substance he/she possessed, only that he/she was aware of the substance’s presence and that it was a controlled substance

Example Of Possession

Charlie and Brooke are stopped by a police officer during a routine traffic stop. While stopped, the officer notices, what he believes, are several prescription pills around the front interior of the vehicle, including on the driver and passenger seat.

The officer asks Charlie and Brooke to step outside the vehicle, as he retrieved the pills from their car. While collecting the pills, the officer noticed, what he believed, was the symbol for Oxycontin on the pill, as well as pills with the symbol for Vicodin on them.

When questioned, neither Brooke nor Charlie had a prescription from a medical professional for any pills at the time. Neither Brooke nor Charlie would admit to owning the pills, and both are subsequently arrested for possession of a controlled substance, a violation under Health & Safety Code § 11350.   

Based on these circumstances, the prosecutor is likely able to prove this charge. Two or more people may possess something at the same time. A person does not have to actually hold or touch something, to possess it. It is enough if the person has control over it/ [or] the right to control it, either personally or through another person.

Example Of Lack Of Possession

While training at the gym,Barry’s trainer tells Barry that he can help Barry to build bigger muscles, with a combination of various steroids in his pocket, if Barry is willing to pay him $100.00. 

Barry tells his trainer that he would definitely want to buy the steroids from him, adding that he can’t wait to get “juiced.”

Barry’s trainer, who was actually an undercover police officer, immediately places Barry under arrest for possession of a controlled cubstance, a violation under Health And Safety Code Section 11350.  

Based on these circumstances, the prosecutor would likely not be able to prove this charge.Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.

Legal Defenses

Below are list of potential legal defenses that may be used in a drug possession case.

The controlled substance was prescribed

Under Health & Safety Code Section 11350, it specifically provides a legitimate legal defense if the controlled substance in possession is a prescription. It states: “Except as otherwise provided in this division, every person who possesses… any controlled substance classified in …which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment.”

This means that, if you are found in possession of codeine (for example), regardless of whether it is a usable amount, you did not unlawfully possess any controlled substance, if, in fact, your doctor prescribed the medicine to you, in your name, for your use, in treatment of your illness. Under the law, with the help of an attorney, you would only need to raise a reasonable doubt about whether his or her possession of the drug was lawful because of a valid prescription⁷.

You did not possess the controlled substance

Health & Safety Code section 11350 is a completely “possession” offense, which means that the law is specifically punishing you for possessing something illegal.

However, possession is required. Therefore, if you did not actually possess (which means having the substance at the present moment or in hand) the controlled substance, or even constructively possess the controlled substance (which signifies storing the substance somewhere else other than on hand, but still having control over it..), then you have not committed a violation under the essence of this law.

You did not know that it was a controlled substance/it was present

Health & Safety Code section 11350 requires knowledge of two things in order to be convicted. First, that you knew of the presence of the controlled substance.

Second, that you knew of the substance’s nature or character as a controlled substance.

Therefore, knowledge is a critical part of this charge. For instance, if you were to purchase a container of baby powder from a chain store, believing at the time, that you were indeed, purchasing baby powder at the time, when in reality, the contents were cocaine, you did not know the “nature or character” of the white substance to be a controlled substance, under the law.

You were a victim of entrapment by law enforcement officials

The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. 

Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”

There is insufficient evidence against you

A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to convict you under the law of California Health & Safety Code Section 11350 hs.  

This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.

Eligibilities

Below are a list of potential programs and laws that HS 11350 may or may not be eligible for under California law.

• Is eligible for an Deferred Entry of Judgment under penal code 1000.
• Is not a “strikeable” offense,
• Does require registration as a drug offender,
• Is eligible for Proposition 36 diversion sentence.

Under Proposition 36: when a defendant is convicted of a “nonviolent drug possession offense,” the court must suspend the imposition of the sentence, grant probation, and require the defendant to participate in and complete a court-approved drug treatment program as a condition of probation.

Penalties

Below are a list of potential penalties in a drug possession case in California.

Penalty	Misdemeanor
Fine	Up to $1,000
Probation	3 years informal probation
Jail	Up to 1 year

HS 11350 may be charged as a felony if you have a prior conviction for a serious felony such gross vehicular manslaughter while intoxicated, murder or a sex crime.

Possible Immigration Consequences

IS a BAR from relief from removal proceedings

• Under the law, “any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C. § 1127(a)(2)(B)(i). “Drug addicts and abusers are deportable and inadmissible even without a conviction. Likewise, those who the government has reason to believe are or were drug traffickers or their assistants are inadmissible, even without conviction. 8 U.S.C. § 1227(a)(2)(B)(ii).

May be considered an “aggravated felony” for immigration purposes

• Aggravated Felony:  This is a predetermined category of crimes that, include both misdemeanor and felony offenses, which can bar a noncitizen from utilizing many different forms of immigration benefits. If you are convicted of a crime that is automatically considered an aggravated felony, it will likely subject you to removal proceedings before an immigration judge. Here, a conviction under 11350(a), depending on the circumstances, MAY be considered an aggravated felony.

NOTE:  For a full review of offenses categorized as “aggravated felonies” under immigration law, visit.

Related Offenses

• Health & Safety Code 11351- Possession and/or Purchase of a Controlled Substance for Sale
• Health & Safety Code 11352- Sale or Transportation of Controlled Substance
• California “Marijuana Cultivation” Laws – Health And Safety Code 11358
• Health & Safety Code 11359- Possession of Marijuana for sale
• California “Possession of Marijuana while driving” Law – Vehicle Code 23222(b)

1. Persons Authorized to Write Prescriptions Health & Saf. Code, § 11150., available at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11350.&lawCode=HSC [↩]
2. California Health And Safety Code Section 11350., availabe at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11350.&lawCode=HSC. [↩]
3. Definition of Analog Controlled Substance People v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179] [↩]
4. Constructive vs. Actual Possession People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162] [↩]
5. Knowledge People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578] [↩]
6. Usable Amount People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d 628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96 Cal.Rptr. 643] [↩]
7. See People v. Mower (2002) 28 Cal.4th 457, 479, 122 Cal.Rptr.2d 326, 49 P.3d 1067 [↩]