Understanding Possession For Sale Laws Under 11375 HS

Overview Of Health And Safety Code 11375

Under Health & Safety Code §11375, it is illegal for anyone topossess for sale, or to sell synthetic stimulants, synthetic cannabis, or otherprescription narcotics, as listed (below), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in California.¹

Health & Safety Code § 11375  includes several specifically named controlled substances.

These include but not limited to any material, compound, mixture, or preparation containing the following:

• Chlordiazepoxide (Librium ®)), Clonazepam (Klonopin®), Clorazepate (Tranxene ®), Diazepam (Valium ®), Flurazepam, Lorazepam (Ativan ®),, Mebutamate, Oxazepam, Prazepam (Doral ®), Temazepam, Halazepam, Alprazolam (Xanax ®), Propoxyphene, Diethylpropion, Phentermine, Pemoline, Fenfluramine, Triazolam (including the combination, to create “bath salts,” “plant food,” or “spice”)²

How Does the Prosecutor Prove This Charge?

If you are charged with illegally selling a designated substance as listed, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code 11375:

1.   You possessed or had in your possession to control any material, compound, mixture or preparation of a designated substance with intent to sell.

AND

2.    You knew of the presence of the designated substance and that it was a designated substance at the time you possessed it.

What is “possession with intent to sell” under Section 11375?

Possession of a designated substance not for the purposes of personal use.  This can be determined by the fact that the designated substance was NOT prescribed, the amount of the designated substance in your possession, and/or other instruments to conduct a sale, such as packaging, etc.

What is “selling” under Section 11375?

Selling means exchanging a designated substance for money, services, or anything of value.

Jennifer is addicted to bath salts. She is approached by David, who has a large quantity of bath salts in his possession.

Daivd offers Jennifer bath salts in exchange for sex, and Jennifer agrees.  

Based on these circumstances, the prosecutor is likely able to prove David guilty under Health & Safety Code section 11375³, in addition to a prostitution charge.

This is because David possessed bath salts, with the intent to exchange them for services, which qualifies as possession with intent to sale under this section.

Penalties

The severity of the penalties that a court may impose at sentencing depends on several factors, including the facts of your case and your criminal history.

Depending on the circumstances, a conviction under Section 11375 can carry probation, jail time, fines as listed:

• If charged as a Misdemeanor, up to 1 year in jail and/or 3 years informal probation
• If charged as a Felony, 1– 4 years in jail and/or 0-5 years formal probation
• Fines and fees up to $1000
• Potential additional requirements, as determined by the court
• Any combination of the above, as determined by the court
• If you are a noncitizen, ineligibility for admission and other immigration consequences, as determined by the immigration court

Defenses

Depending on the circumstances, an experienced and diligent attorney, like the attorneys of the Aizman Law Firm, will evaluate your case and assess the most effective legal defenses to assist in negotiating a possible charge reduction, or if applicable, dismissal of the charges. Below are possible legal defenses to a charge under Health & Safety Code §11375:

The Designated Substance was for Personal Use.

This shows that you had no intent. Although the designated substance was in your possession, you had no intent to sell it. In fact, it was solely for your personal use. If the designated substance (ex: Xanax) that you possessed was for your own personal use AND you did not intend to sell the substance then the charge may be reduced to a simple possession charge.  Under these circumstances, a skillful attorney can argue to the prosecutor that, the fact that the designated substance was for your personal use, with no intent to sell, a charge under Health & Safety Code section 11375 would be improper.

• Effect:  Possible charge reduction to a misdemeanor if alleged as a felony. If alleged as a misdemeanor, may allow for charges to be amended to a lesser charge, which would allow the possibility of a diversion, and/or carry less time in custody.

The Designated Substance was Prescribed.

• Under Health & Safety Code § 11375, 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.”((a) As to the substances specified in subdivision (c), this section, and not Sections 11377, 11378, 11379, and 11380, shall apply. (b) (1) Every person who possesses for sale, or who sells, any substance specified in subdivision (c) shall be punished by imprisonment in the county jail for a period of not more than one year or state prison. (2) Every person who possesses any controlled substance specified in subdivision (c), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be guilty of an infraction or a misdemeanor.))

• This means that, if you are found in possession of Xanax (for example), 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 a diligent and conscientious 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 prescription.⁴

You did not Possess the Designated Substance.

• Although Health & Safety Code section 11375 is a “possession with intent to sale” offense, possession is required. Therefore, if you did not actually possess(which means having the substance at the present moment or in hand) the designated substance, or even constructively possess the designated 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.⁵

You did not know that it was a Designated Substance/it was Present.

• Health & Safety Code section 11375 requires knowledge of two (2) things in order to be convicted. First, that you knew of the presence of the designated substance. Second, that you knew of the substance’s nature or character as a designated substance. Therefore, knowledge is a critical part of this charge.

You were a Victim of Entrapment by Law Enforcement Officials.

• Entrapment:  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. 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 defendant.

Related Offenses

Health & Safety Code § 11350- Possession of a Controlled Substance:   

Every person who possesses any controlled substance, which is a narcotic drug, unless upon the written prescription of a licensed physician, shall be punished by imprisonment⁶.

Health & Safety Code § 11351- Possession and/or Purchase of a Controlled Substance for Sale: 

Every person who possesses for sale or purchases for purposes of sale any controlled substance, which is a narcotic drug, shall be punished by imprisonment.⁷

1.  As to the substances specified in subdivision (c), this section, and not Sections 11377, 11378, 11379, and 11380, shall apply. (b) (1) Every person who possesses for sale, or who sells, any substance specified in subdivision (c) shall be punished by imprisonment in the county jail for a period of not more than one year or state prison. (2) Every person who possesses any controlled substance specified in subdivision (c), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be guilty of an infraction or a misdemeanor. [↩]
2. Id. [↩]
3. See People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541] [↩]
4. See People v. Mower (2002) 28 Cal.4th 457, 479, 122 Cal.Rptr.2d 326, 49 P.3d 1067 [↩]
5. See People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162. [↩]
6. California Health and Safety Code section 11350(a) states, in pertinent part:  (a) 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 state, shall be punished by imprisonment [↩]
7. California Health and Safety Code section 11352 states, in pertinent part: Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance or narcotic drug shall be punished by imprisonment. [↩]