Being under arrest for any criminal offense can be terrifying, especially if the alleged offense involves illegal or controlled drug substances. If you are under arrest for allegedly committing a drug crime, your freedom and reputation could be at risk. Although most common drug crimes are chargeable as misdemeanors, the prosecution will seek to file the most severe charge against you to deter people with similar habits.
Let's take a look at factors that make a drug crime a felony under the law and how you can fight for your legal rights and best interest if you are under arrest for any drug-related crime.
What is a Drug Crime?
Before we go deep on factors that can make your drug charge a felony under the law, it is important to understand what constitutes a drug crime. A drug is any substance that can alter your psychological and physiological state, whether prescribed or not, for example, marijuana, cocaine, or heroin.
Drug crimes are everyday offenses that occur in our homes and streets despite the relentless effort by law enforcement officers to fight these crimes. Generally, you commit a drug crime when you violate laws regulating or prohibiting the manufacturing, transportation, trafficking, and possession of illegal and controlled drug substances.
The most common drug charge that most people face involves the possession of illegal drug substances like marijuana. Unlike other unlawful drug substances, possession or cultivation of marijuana is legal within certain limits.
Regardless of the circumstances and events that led to your arrest, you should contact an attorney if you are in police custody for any drug crime or related offense. Remember, anything you decide to discuss with the arresting officers can act as incriminating evidence against you in court.
A criminal defense attorney will help you secure bail and fight for your legal rights through every prosecution process while you are out of police custody.
Factors and Circumstances That Can Make Your Drug Charge a Felony Under the Law
If you are under arrest for a drug charge, the prosecutor may choose to file your case as a felony or a misdemeanor, depending on various factors existing within the context of your case. However, a misdemeanor drug charge will make you subject to less severe punishment in contrast to a felony charge of the same drug offense when it comes to sentencing.
Most misdemeanor drug offense convictions will attract a prison term of less than a year, but a felony drug offense conviction can make you subject to many years behind bars and hefty fines. Since felony drug offense conviction comes with severe penalties and other negative consequences, it is essential to know and understand what constitutes a felony drug crime under the law.
Whether the prosecutor will file your unique drug charge as a misdemeanor or a felony will depend on the following factors:
The Type of Illegal Drug Substance Involved and the Amount
The type and amount of illegal substance you allegedly had in possession during the time of the arrest will determine the type of charge the prosecutor files against you. For example, possession of specific controlled drug substances like heroin (schedule 1 substance) will make you subject to an automatic felony drug charge regardless of the amount you had in possession.
However, if the type of illegal drug substance involved is marijuana, the amount you had in possession will determine whether your charge will be a felony or a misdemeanor. Under the law, those over 21 can legally buy, possess and consume a maximum of 28.5 grams of marijuana in a private home or any other licensed establishment for marijuana consumption.
Most often, simple possession of marijuana is chargeable as a misdemeanor offense. However, if the amount you had in possession greatly exceeds the legal limit, meaning you had the intent to sell or distribute it, your case will be a felony.
Generally, the specific type and the amount of drug you allegedly had in possession will influence the severity of your charge. Ensure you discuss your case with an attorney even if your case involves simple possession of a small quantity of illegal drug substances because complex laws surround these types of cases.
Whether the Illegal Drugs Were for Personal Use or Sale
Possession of some illegal drug substance for personal use will attract less severe criminal charges than possession with a motive or intent to sell. As mentioned above, the prosecutor will consider the quantity of the drugs you had in possession to determine if you had the motive to distribute or sell them.
Even if the illegal drugs you had in your person or vehicle were for personal use, when they exceed a specific legal limit, you might be subject to felony charges. Possession of large amounts of unlawful drugs indicates you had to distribute or sell them because it is unlikely that you had the intent to consume or use the entire amount by yourself.
In most cases, trafficking, selling, or distributing illegal drugs is chargeable and punishable as a felony because the drug is likely to cause harm to many people. Even mere possession of a small quantity of illegal or controlled drug substances can make you subject to felony charges depending on your case’s facts.
You will depend on your criminal defense attorney through every step of the prosecution process if you are under arrest for any alleged drug case regardless of the amount you had in possession since most prosecutors will file your case as a felony.
Aggravating Factors or Circumstances Surrounding Your Alleged Drug Charge
If there are aggravating factors or circumstances surrounding your alleged drug charge, the prosecutor will pursue felony charges against you even if this case would otherwise be a misdemeanor. Aggravating factors under the law are generally facts that can make the court or the prosecutor believe that criminal acts happening under these circumstances are more harmful.
For instance, trafficking or selling drugs to children or around children is an aggravating factor that will make the prosecutor file felony drug charges against you. Below are other aggravating and circumstances or factors the prosecutor will consider:
1. Whether You Were Driving Under the Influence or Not
The drug charge against you is likely to be severe if the incidents leading to your arrest are related to driving under the influence (DUI). DUI is a separate severe criminal offense under the law, which is likely to make your drug charge severe.
DUI is a severe crime itself because it shows disregard for human health or life. In addition, possession of illegal drugs while driving under the influence will automatically make you subject to felony charges, which means a harsher punishment under the law.
2. Possession of a Firearm
Health and Safety Code 11370.1 makes it unlawful to possess any quantity of illegal or controlled drugs like heroin or cocaine while armed with an operable or loaded firearm.
Having a firearm in these kinds of cases means you were ready to use it to commit another crime or for defense purposes. A conviction for violation of Health and Safety Code 11370.1 will make you subject to a prison term of two (2), three (3), or five (5) years and a maximum fine of $10,000.
Even if you didn’t discharge the alleged firearm or threaten someone with it, you could still face a criminal charge for violating Health and Safety Code 11370.1. Therefore, you need to act quickly if your criminal charge involves possession of a firearm because the possible penalties of this offense can harm your future in many negative ways.
3. Your Criminal History
Your criminal history will determine whether the prosecutor will file your drug charge as a misdemeanor or a felony. If you have a past criminal record for a drug charge conviction or any other type of criminal offense conviction, the prosecutor will pursue felony charges against you.
A criminal record will count in any subsequent crime sentencing because it shows you are a notorious lawbreaker, which means you deserve harsher penalties.
4. Bodily Injury or Death of Another Person
Injuring or killing another person during the commission of any drug crime will automatically make your case a felony offense. Inflicting injury or attempting to inflict injury on a person shows disregard for human life and health even if you didn't "touch" him/her.
All these factors will help the prosecutor decide how to file your alleged drug charge for prosecution. Because possible consequences of a felony drug charge conviction can be significant, it is wise to retain the services of a defense attorney as soon as you can.
An experienced criminal defense attorney will understand the severity of the drug charge you are facing and how to build viable defense tactics to fight for your best interest and a desirable outcome.
Possible Consequences of a Felony Drug Offense Conviction
The consequences you will face for a drug offense conviction will depend on the specific facts of your case and the various factors mentioned above. A felony conviction for violating any law regulating or prohibiting manufacturing, possession, trafficking, and transportation of illegal drug substances will make you subject to the following consequences under the law:
An Incarceration Term
Felony convictions for a drug offense will attract a longer prison term than a misdemeanor conviction of the same offense. Depending on your unique drug charge circumstances and facts, your time in prison will be anywhere between one to three years if it is your first-time drug charge conviction.
If you are a repeat offender, you might be subject to a prison term ranging from three to fifteen years for any subsequent conviction of a drug charge. Since a felony drug offense conviction counts as a "strike" under the Three Strikes Law, you could also be subject to a prison term of 25 years to life if you have two past convictions for severe felony drug charges.
Fines
Apart from the lengthy prison terms, a felony conviction for a drug charge will also attract a fine ranging from $250 to $50,000, depending on your unique case facts and circumstances.
Mandatory Rehab
As part of your sentence or punishment, you will also have to enroll in a mandatory drug treatment program. The length of time you will stay at the rehabilitation center will depend on the severity of your case and the type of illegal substance involved.
Formal Probation
Instead of a prison term, in some cases, the court may also order formal probation for a felony drug charge conviction. Formal probation, also known as summary probation, will allow you to serve part or all of your sentence for a felony drug charge conviction out of custody.
However, you have to comply with your probation conditions, including regular meetings with your assigned probation officer and submitting regular drug tests.
Remember, if you violate these conditions, the judge will terminate the probation and send you back to jail. Therefore, you must comply with all the required conditions of your probation if you want to stay out of prison following a drug charge conviction.
Deportation for Non-Immigrants
For non-immigrants, a conviction for a drug charge will attract more than a prison term and a fine. If you are a non-citizen, your immigration status can be affected by a felony drug charge conviction. Under the law, a drug charge is a crime of moral turpitude, particularly if it involves some form of violence.
A drug charge conviction that counts as a "crime of moral turpitude" under the law can make you subject to deportation consequences if you are a non-citizen. You will need the services of a criminal defense attorney by your side through every court proceeding if you are facing a drug charge.
An experienced criminal defense attorney will increase your chances of fighting or reducing the alleged drug charge against you for the best possible outcome.
Why You Need a Defense Attorney When Facing a Felony Drug Charge
Considering the possible penalties, you could face for a felony drug offense conviction, retaining the services of a criminal defense attorney is a brilliant idea to fight for your legal rights and interest through every court process. Here are the benefits of having a criminal defense attorney if you are under arrest for a felony drug charge:
He/she Will Advise You of Your Legal Rights
If you are under arrest for any criminal offense, you must remember your constitutional rights to avoid self-incrimination during the prosecution process. Here are some of your constitutional rights to remember during your alleged drug case's prosecution process:
- You have a right to stop talking or remain silent during the interrogation process.
- You have a right to see a judge as soon as possible after the arrest
- You have a legal to a reasonable bail to secure your freedom after an arrest before your case verdict
- You are legally protected from unreasonable searches by the police or any other law enforcement officer
He/she Can Help you Counter the Alleged Charges During Trial
During your alleged drug charge trial, you will depend on your defense attorney to prove to the judge beyond a reasonable doubt that the allegations against you are untrue. A qualified and credible criminal defense attorney can apply bulletproof defense arguments to fight for a desirable outcome during your alleged drug charge trial.
Defense arguments mentioned below would be applicable and viable to counter the alleged drug charges against you:
- The arresting police did an illegal search and seizure on your premises or
- The arresting police did not follow proper arrest procedures, for example, failing to inform you of your Miranda rights.
- The drugs you had in possession were not yours, or you were not aware you had them.
A criminal defense attorney will protect your legal rights during every step of your drug charge prosecution process to fight for a dismissal or a less severe alternative charge that comes with less harsh sentences. When searching for a reliable criminal defense attorney to represent you during these stressful moments, you should consider the following:
- The attorney's experience
- The attorney's cost of services
- The attorney's reputation
- The attorney's accreditation
- The attorney's location
- The attorney's schedule and accessibility
If you are in police custody for any drug charge, you should do all you can to counter the alleged drug charges against you for the best possible results. The best way to ensure this happens is by hiring a reliable criminal defense attorney to act as your legal counsel during every court process.
Find a Criminal Defense Attorney Near Me
A felony conviction for a drug charge comes with more negative effects on your life than a misdemeanor. Understanding factors that make a drug crime a felony can be helpful if you are under arrest to know the kind of charges you are facing ahead of time.
Reliable attorneys at Los Angeles Criminal Attorney can help you navigate the confusing criminal justice system if you or your son is under arrest for any drug charge to ensure the best possible outcome.
Call us at 424-333-0943 to discuss your case with our understanding attorneys for an aggressive legal representation that you deserve.
