It can be challenging to navigate California's legal system when dealing with drug-related offenses, particularly when it comes to the possession of illegal narcotics with the intention of selling them. It is unlawful to possess restricted substances with the intent to sell them, according to Health and Safety Code 11351. California enforces this law to combat the distribution of illegal drugs and reduce their impact on communities. If you violate this law, you could face harsh penalties, including hefty fines and prolonged jail terms. Understanding the intricacies of Health and Safety Code 11351 will enable you to appreciate the gravity of these violations and the associated legal repercussions. The information below will help you understand the possession and sale of illicit drugs and the associated legal ramifications.

What Drugs are Considered Illegal Under California Law?

The Health and Safety Code 11351 classifies certain regulated chemicals as unlawful. The classification of these substances is based on three factors: safety, medical utility, and abuse potential. Each classification, or schedule, has several substances or drugs.

Schedule I Substances

These drugs have no recognized medical purpose and have the most significant potential for abuse. They are also not considered safe for use in medicine.

  • Heroin,
  • Fentanyl LSD (lysergic acid diethylamide)
  • MDMA, also known as ecstasy
  • Psilocybin, found in magic mushrooms
  • Quaaludes, or methaqualone
  • Mescaline
  • GHB, or gamma-hydroxybutyric acid
  • Certain synthetic cannabinoids

Schedule II Substances

Despite their strong limitations and acknowledged medical usefulness, medicines classified as Schedule II have a significant potential for misuse. These drugs can cause serious psychological or physical dependence when abused. This category includes:

  • Cocaine
  • Methadone
  • Oxycodone
  • Hydrocodone
  • Morphine

Schedule III Substances

Drugs listed as Schedule III have recognized medical benefits and reduced potential for abuse compared to substances listed under Schedules I and II. These medicines have the potential to cause either high psychological dependence or mild physical dependence when abused. Examples include:

  • Codeine, when used with other drugs like Tylenol
  • Ketamine
  • Anabolic steroids

Schedule IV Substances

Schedule IV substances have a lesser potential for abuse. Their abuse could result in limited physical or psychological dependence, but they have recognized medical usefulness. Drugs in this category include:

  • Xanax or Alprazolam
  • Valium or Diazepam
  • Ativan or Lorazepam

Schedule V Substances

Of all the schedules, drugs under Schedule V have the least potential for abuse. They have a low potential for abuse because they are used medicinally. These include:

  • Robitussin AC
  • Ezogabine

What It Means to Be in Possession of an Illegal Drug With the Intention to Sell

Contrary to popular belief, Health and Safety Code 11351 does not require the authorities to catch you selling drugs to prove your intent. Prosecutors do not need to provide evidence of a completed transaction to demonstrate that you meant to sell. Instead, they need to provide specific evidence to support your intentions to do so. They must prove that you were in possession of a controlled substance and that, based on the quantity and other circumstances, it appeared you planned to sell it rather than use it yourself.

Under the law, prosecutors must establish the following to prove an intent to sell:

  • You were in possession of a controlled substance — Even if the substance was not immediately on you, prosecutors still need to demonstrate that you had control over it.
  • You were aware that the material was a restricted substance — This shows that you knew what you had was illegal.
  • You had the intention of selling the drug, not only using it for personal use — The quantity of the drugs, the presence of a container, scales, and any behaviors implying distribution can all be considered evidence.

Possession of the Drug

The prosecution must demonstrate your method of drug control to establish possession under HSC 11351. They can demonstrate possession through actual, constructive, or joint means.

Possession is clear-cut if the drug was physically on you or under your direct control. This is actual possession. The state could provide evidence to show that you directly had the controlled substance in your possession, for example, if it was in your pocket or purse.

On the other hand, constructive possession is slightly different. You may not have had the substance in your person. However, you may have had control over the substance. This requires demonstrating that you were aware of the drug's location and that you were able to access and control it, for example, by having the drug in your car.

Alternatively, joint possession is also allowed to prove possession. Prosecutors could show that you and other people had access to and control over the drug. Simply put, access to and control of the substance were shared.

Intention to Sell Rather Than For Personal Use

The prosecution must demonstrate that you had the controlled substance with the intention of selling it rather than using it for personal use to convince the jury to convict you. This distinction is important because it affects your penalties and legal ramifications.

Prosecutors use several issues to show that you intend to sell, namely:

  • Determining how much of the substance you had — Higher quantities often suggest that the drug was meant for distribution rather than personal use.
  • Presence of packaging material — Along with other goods usually connected to the drug trade, they search for packaging supplies like scales and small bags, weighing scales, bundles of cash in small denominations, or containers. These components imply that the purpose of your possession was to distribute.
  • Your conduct or statements you made — Prosecutors could use your statements and conduct in addition to tangible evidence to establish your intent. They can introduce your conversations or transactions that suggest you were involved in drug sales or distribution planning. Witness statements or official records attesting to your involvement in drug distribution further support their case.

When law enforcement officers find drug paraphernalia, like pipes or needles, it typically indicates personal use rather than distribution. This evidence will strengthen your defense. Usually, these products are associated with personal drug use rather than drug trafficking. Discovering items linked to personal usage undermines the prosecution’s case since it implies that the drugs were intended for your use.

Furthermore, if you were under the influence of the drug at the time of your arrest, it usually indicates that the drugs were for personal use rather than sale. This scenario lends credence to the idea that you possessed the drug for personal use because it implies that you were using it yourself.

However, many drug dealers consume their drugs as well as sell them. Therefore, being under the influence does not prove beyond a reasonable doubt that the drugs were not intended for distribution. The prosecution may nonetheless argue that you meant to sell the drugs, particularly if there is additional evidence supporting this claim.

The jury or judge will take your case's overall context into account to determine whether the drugs were meant for personal use or are indicative of an intent to sell.

Possible Penalties for Being in Possession of Illegal Drugs for Sale

If found guilty of breaking HSC 11351, you could face harsh punishments, particularly:

  • In addition to probation, you might go to county jail for up to a year
  • Alternatively, you could go to county jail for 2, 3, or 4 years
  • A possible $20,000 maximum fine

A significant quantity of illegal drugs and prior convictions on your record are aggravating factors. These factors attract harsher penalties.

Those found guilty of possessing or buying cocaine bases for resale will face:

  • A potential fine of $20,000
  • 3, 4, or 5 years in county jail

The penalties for selling or possessing heroin, cocaine base, or cocaine escalate in proportion to the amount of the drug:

  • You will serve an extra three years if the substance weighs over one kilogram
  • You would have to serve an extra 5 years if it was more than 4 kg
  • You are looking at an extra 10 years if it was more than 10 kilograms
  • If the substance weighs over 20 kilograms, you must wait an extra 15 years
  • If it weighs more than 40 kilograms, you will have to serve an extra 20 years
  • You could face an extra 25 years if it is over 80 kg

Moreover, there might be fines of up to $8,000,000 for these weight additions.

You will be subject to an extra and consecutive 3-year sentence for each prior felony conviction if:

  • You are found guilty of possessing or buying controlled substances for sale and
  • You have been convicted of at least one prior drug crime in California that involved more than just personal use.

Possession of illegal drugs with the intent to sell them is a deportable offense. You could face serious immigration repercussions if found guilty. Convictions related to drugs, particularly those including the intent to sell, are grounds for deportation under U.S. immigration law. You risk being deported, being barred from re-entering the country, and losing eligibility for certain forms of relief, like asylum or adjustment of status.

Common Defenses Used in Possession for Sale of Illegal Drug Cases

The circumstances surrounding a case involving the possession of illegal narcotics for sale greatly influence the criminal defense attorneys' defense strategies. They go over specifics, including the quantity of the drugs, any indications that you were about to sell the drugs, and the circumstances surrounding your arrest. Here is a look at some of the defenses your attorney could use:

You Possessed the Drugs for Personal Use

Your lawyer could argue that you only had the drugs for personal use to demonstrate that you had no intention of distributing the drugs. This defense strategy seeks to convince the jury that you are not guilty of the more serious possession with intent to sell charge.

This is where your lawyer will provide evidence that the drugs were for personal use only, not for sale. He/she could demonstrate that the amount of drugs is similar to what an individual would use, or they could offer context from your circumstances that support this claim.

If the defense is successful and the jury agrees that the drugs were for personal use, you could face a conviction for simple possession. This usually results in lighter penalties, including probation, a shorter jail sentence, or lesser fines than the harsher consequences of possession with intent to sell.

Police Conducted an Illegal Search and Seizure

Your Fourth Amendment protections against arbitrary searches and seizures apply even if you are engaging in drug use. Law enforcement officers must adhere to the correct protocols when searching your home or obtaining evidence while discharging their duties. If law enforcement conducts a search or seizure without a valid warrant, consent, or probable cause, they violate your Fourth Amendment rights. Similarly, any evidence found during a search that goes beyond the parameters of a legitimate warrant could also be excluded. Furthermore, it is unlawful for the police to detain you without the necessary legal justification, like having a reasonable suspicion that you were involved in a crime. They most likely will not be able to use any drugs or evidence they find during this unauthorized detention in court.

Your attorney will file a motion to suppress evidence obtained through an unauthorized search or seizure. This motion argues that the evidence should not be used in court. Should the judge concur and reject the evidence, the prosecution might find it difficult to establish its case. Without this crucial evidence, the judge could dismiss the case against you or reduce the charges.

You Did Not Possess the Drugs

It is a defense to claim that you did not possess the drugs. This strategy directly challenges a critical element of the prosecution’s case: control over the illegal substances.

Your lawyer will first challenge actual possession. He/she will provide evidence, including witness testimony, surveillance footage, or forensic data like the absence of fingerprints on the substances.

This will help demonstrate that the drugs were not on you or within your reach.

Your lawyer will then address constructive possession. Recall that this possession holds that even though the drugs were not on you, you still had control over the location where they were discovered. If the drugs were found in a communal area, your lawyer would contend that you had no control over that place.

Your attorney could also offer alternative explanations for the drugs. He/she could argue that you were not aware of the drug’s presence or that someone else was at fault. If you can show that they belonged to someone else, you can prove that you are not the owner of the drugs.

Alternatively, your lawyer can also contest the chain of custody. They will examine the handling and storage of the drugs from the time of the seizure until the court date. Any problems are sufficient to raise questions about whether you owned the drugs.

Cross-examination could reveal contradictions in witnesses' testimony, especially law enforcement officials. If their testimony on the location and manner of drug discovery is untrustworthy, this may support your defense.

You Were Not Aware of the Drug’s Presence

You could challenge drug possession allegations on the grounds of factual innocence. This entails demonstrating that you were unaware of the drugs discovered around or on you. This defense targets your knowledge of and control over the narcotics, a critical component of the prosecution's case.

This defense starts with your lawyer demonstrating that you were unaware of the drugs. For example, if the drugs were discovered in someone else's vehicle or a borrowed jacket, your lawyer will contend that you were not aware of their presence. They will present evidence, including witness statements or documents, to demonstrate that you did not handle or know about the drugs.

Your lawyer will then bring the jury’s attention to whether you were in charge of the area or objects that contained the drugs. If the drugs were found in a common area or on someone else's property, your defense attorney would argue that these areas were not within your control. This proves beyond a doubt that you did not own the drugs.

Moreover, your defense will carefully examine the prosecution's evidence for flaws or contradictions. Your attorney will contend that the prosecution's use of circumstantial evidence, instead of direct proof, falls short of the necessary standard of proof beyond a reasonable doubt.

Find a Criminal Defense Attorney Near Me

Charges for possessing illegal drugs to sell them could have a significant adverse effect on your future. The legal process is complex, with severe penalties, including lengthy prison terms and substantial fines if convicted. This is not something you have to handle by yourself.

Speaking with a criminal defense lawyer who can protect your rights, provide knowledgeable advice, and work to get the best outcome for your case is in your best interest. At the Los Angeles Criminal Attorney, we will evaluate all available options, examine any evidence presented by the prosecution, and fight to have the charges dropped or reduced. Speak with one of our experienced criminal defense lawyers at 424-333-0943.