I will cover the following:
- Possession of meth
- Possession for sale of meth
- Transporting meth
Let’s get started…
- Overview Of California “Meth” Laws
- How Does The Prosecutor Prove Meth Possession?
- Penalties For Meth Possession Under HS 1377
- Laws For Selling Methamphetamine
- California Law For Transporting Meth
- Legal Defenses
- Next Steps If You Need Help
Overview Of California “Meth” Laws
Health & Safety Code sections 11377, 11378 and 11379 are laws that make certain actions illegal for specified types of drugs, namely methamphetamines.
- Health & Safety Code 11377 – makes it illegal to possess Methamphetamine for personal use.
- Health & Safety Code 11378 – makes it illegal to possess Methamphetamine for sale.
- Health & Safety Code 11379 – makes it illegal to transport Methamphetamine.
What Are The Laws For Possession Of Methamphetamine?
Under this law, it is illegal to possess methamphetamines, as well as any controlled substance listed under Schedule III, IV or V, unless it is prescribed by a licensed medical professional.
How Does The Prosecutor Prove Meth Possession?
- You unlawfully possessed or exercised control over a controlled substance;
- You knew of its presence;
- You knew of the substance’s nature or character as a controlled substance;
- The controlled substance was methamphetamine or other included substance;
- The controlled substance was in a usable amount.
Penalties For Meth Possession Under HS 1377
|Fine||Up to $1,000||As determined by the court|
|Probation||3-5 years summary probation||3-5 years formal probation|
|Jail||Max of 1 year county jail||16 months – 3 years in state prison|
- Is eligible for aPretrial Diversionsentence,
- Is not a “strikeable” offense,
- Doesrequire 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.
Can medical professional possess methamphetamine?
Doctors, veterinarians pharmacists and certain other medical professionals are not violating the law under HS 11377 when they possess methamphetamines as part of dispensing their duties under California law1.
Laws For Selling Methamphetamine
Under this law, it is illegal to possess for sale, methamphetamines, as well as any controlled substance listed under Schedule III, IV or IV, unless it is prescribed by a licensed medical professional.
This law requires the specific intent to sell the illegal drug, in addition to possessing it.
How Does The Prosecutor Prove Possession For Sale Of Meth?
- You exercised control over, or purchased from another, a controlled substance;
- You knew of its presence;
- You knew of its nature as a controlled substance;
- The substance was in a usable amount sufficient to be used for sale or consumption;
- You possessed or purchased the controlled substance with the specific intent to sell same.
What Are Penalties For Possession For Sale Of Meth?
|Fines||As determined by the court|
|Probation||3-5 years formal probation|
This charge is a felony and carries all the weight and stigma of being deemed a “felon” under the eyes of the law, including but not limited to:
- Lose right to possess firearm,
- Lose right to vote,
- Lose right to sit on a jury,
- Lose right to hold public office,
- Required to provide law enforcement with a sample of your DNA,
- Immigration consequences, as a drug abuser, if you are a noncitizen.
California Law For Transporting Meth
Under this law, it is illegal to transport, sell, furnish, administer or give any meth, or controlled substance listed under Schedule III, IV or V, unless it is prescribed by a licensed medical professional.
How Does The Prosecutor Prove Transportation?
If you are charged with transporting methamphetamine the prosecutor must prove the following to establish that you are guilty under Health & Safety Code § 11379:
- You transported, sole, furnished, administered, or gave away a controlled substance;
- You offered to transport, sell, furnish, administer, or give away a controlled substance;
- You knew of the controlled substance’s presence;
- You knew it to be a controlled substance.2
Penalties For Transporting Methamphetamine
This charge is a felony.
|Fines||As determined by the court|
|Probation||3-5 years formal probation|
Understanding The Legal Elements
There are 2 kinds of possession under these laws:
You have actual and/or exclusive control over the substance, you actually have it in your hand or on your person.
- You are arrested with methamphetamine in your pocket (under H&S § 11377).
- You are arrested with a large quantity of methamphetamine in your car (under H&S § 11378 and 11379).
You do not have to actually hold or touch the substance, to possess it. It is enough if you have control over it/ [or] the right to control it, either personally or through another person.
Example of Constructive Possession
2 or more people may possess something at the same time, such as in a car, etc.
What is “knowledge” under these laws?
You were aware of the substance’s presence, and that it was a controlled substance.3
- You are arrested with pills that you knew were in your purse, that you thought were Vicodin, but in actuality, were Xanax. Both are illegal controlled substances under H&S § 11377, the mere fact that you knew that the substance was in your possession, and you knew that it was a controlled substance is enough.
- You are arrested with the entire trunk of your car filled with Xanax, and you knew that it was Xanax. Depending on whether you had traveled any measurable amount of distance, you would be violating H&S § 11378 & §11379.
What is a “usable amount” under these laws?
Quantity of a controlled substance suitable for you to use, whether or not it is enough, in amount or strength, to affect the user.3
- You are arrested while holding Adderall® pill in your hand.4
- You are arrested with a full bottle of Adderall® in the cup holder of your vehicle. ((Under H&S 11378 and 11379))
What is “selling” under these laws?
Below are possible legal defenses to charges under Health & Safety Code §11377, §11378 and §11379:
The Controlled Substance Was Prescribed
- Under Health & Safety Code § 11377, §11378 and §11379: All of the sections specifically provide a legitimate legal defense if the controlled substance is a prescription. All three sections state: “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, 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 a diligent and conscientious attorney, you would only need to raise a reasonable doubt about whether your possession of the drug was lawful because of a valid prescription5.
You Did Not Possess The Controlled Substance.
UnderHealth & Safety Code § 11377, 11378 and 11379: These laws include a very important element of “possession.” Therefore, if you did not actually possess, or even constructively possess the controlled substance, then you have not committed a violation under the essence of these laws.
You Did Not Know That It Was A Controlled Substance/It Was Present.
Under Health & Safety Code § 11377, 11378 and 11379: These laws require 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 these charges.
You Had No Intent.
- Under H&S Section 11378: Although in your possession, you had no intent to sell the illegal drugs. In fact, perhaps they were solely for your personal use.
Effect: Possible charge reduction, to Health & Safety Code § 11378 charge, which can be charged as either a misdemeanor or a felony, allows the possibility of a diversion, and carries less time in custody.
- Under H&S §11379: Although in your possession, you had no specific intent to engage, or even offer to engage in any of those acts, such as to transport, furnish or administer the controlled substance.
Effect: Possible charge reduction, to Health & Safety Code § 11379 charge, which can be charged as either a misdemeanor or a felony, allows the possibility of a diversion, and carries less time in custody.
You Did Not Transport The Controlled Substance.
Under Health & Safety Code § 11379: A knowledgeable attorney can attempt to persuade the prosecutor that, regardless of the amount of movement, or lack thereof, that the element of intent to transport the controlled substance cannot be met. As a result, a charge reduction to simple possession may be possible.
You Were A Victim Of Entrapment By Law Enforcement Officials.
UnderHealth & Safety Code § 11377, 11378 and 11379: The act of law enforcement officers or government agents inducing or encouraginga person to commit a crime when the potential criminal expresses a desire not to go ahead.6 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.”3
There Is Insufficient Evidence Against You
UnderHealth & Safety Code § 11377, 11378 and 11379: A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to convict you under these laws. 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.
Post-Conviction Relief – HS 11377
If you are convicted under Health & Safety Code section 11377, your record can be expunged. Additionally, If you were placed on probation when convicted, which did not include a state prison sentence related to the “wobbler” conviction, then you may be able to have your felony reduced to a misdemeanor via Penal Code section 17(b).
Subsequently, dismissed in the interests of justice pursuant to a Petition under Penal Code section 1203.4. If you Petition for a Dismissal, the court, upon proper motion, may withdraw your guilty or no contest plea, or verdict of guilt if you went to trial, and enter a not guilty plea.
Following, the court will set aside and dismiss the conviction. From that point forward, you are no longer considered convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.7
However, If you violate any of the terms and conditions of your probation, then you are not eligible for either a reduction and/or expungement.
Certificate Of Rehabilitation
A Certificate of Rehabilitation generally allows a person to have some of his or her civil and political rights of citizenship restored. The granting of a Certificate of Rehabilitation also serves as a plea to the Governor for a pardon. Rights restored by a pardon are defined in Penal Code § 4852.178
Post-Conviction Relief – HS 11378 & 11379
If you are convicted under Health & Safety Code section 11378 and/or 11379, AND you completed all terms of your probation, without violation, then you may be eligible for a dismissal under Penal Code section 1203.4.
You cannot have been sentenced, or served, any prison time in conjunction with this conviction. Unlike Health & Safety Code section 11377, these charges are not categorized as “wobbler,” offenses, and are therefore not eligible for a reduction to a misdemeanor under Penal Code section 17(b).
The conviction is withdrawn and the charges dismissed. As a result, once expunged, you would be able to answer “no” to a question of conviction on most private employment applications.
Next Steps If You Need Help
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
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- Health And Saftey Code 11377
- People v. Rogers (1971) 5 Cal.3d 129
- Under H&S 11377
- See People v. Mower (2002) 28 Cal.4th 457, 479, 122 Cal.Rptr.2d 326, 49 P.3d 1067