Drug crimes are some of the most common offenses in California. The public perception of drugs has changed over time, especially concerning the use of marijuana, but the laws are slower to change. Simple possession of some drugs can still lead to criminal penalties, while crimes such as trafficking or manufacturing drugs are still treated very seriously, and can often be charged as a state or federal offense.
Some of the most common issues and questions involved drug charges in California include:
- Possession for Sale
- Sales and Transportation
- Diversion Programs
- Prop 36
Penalties and prison time for any drug crime may depend on the amount of drugs involved, and whether or not the defendant has a prior criminal record. Quantities over the “threshold” amount may result in the state seeking mandatory minimum prison time. Offenses such as sale, transportation, or distribution of drugs carry greater penalties than simple possession.
Possession of a controlled substance can include illegal drugs, or even prescription drugs without a prescription. Possession of a small amount of drugs for personal use is usually a misdemeanor violation, under California Health and Safety Code 11350. However, a prior criminal record could increase penalties. For many first time offenders, a diversion program may be available to have criminal charges dropped after successful divers program completion.
Sale, Distribution, and Manufacturing
Being in possession of a quantity of drugs greater than what’s needed for personal use can result in charges of possession with the intent to sell drugs. Having paraphernalia or signs of drug sales can trigger charges of drug distribution. These charges, along with drug manufacturing, are treated much more seriously than simple possession charges, and can be tried as federal crimes which often carry mandatory minimum sentences.
Although California has decriminalized marijuana for medical use, it is still illegal to possess for personal recreational use under Health and Safety Code 11357. A small quantity may only result in a simple fine, but larger amounts will carry greater penalties.
Diversion Programs and Prop 36
California has a program to allow low-level criminal offenses to be handled through the Deferred Entry of Judgment (DEJ) program, under California Penal Code 1000. Simple first-time drug possession proceedings will be held off until the defendant completes a drug rehabilitation program. After a successful rehab program, the judge may dismiss any pending criminal charges.
California Proposition 36 is another alternative drug penalty program, that allows non-violent drug possession defendants to receive probation instead of jail time. A requirement of probation includes a drug treatment program.
Drug Crime Defense Lawyer
If you have been charged with a drug-related crime in the state of California, you should consider contacting an attorney with the skill and experience to handle your case. Drug crime law can be complex, and is always changing. The police don’t always follow the rules, but the Fourth Amendment is guaranteed by the U.S. Constitution, and prohibits unreasonable search and seizure. If the police performed an improper stop or illegal search, your California defense lawyer can make sure your rights are protected, and fight to get the charges against you reduced or dismissed.
California Health and Safety Code 11357 regulates marijuana laws.
In California, Marijuana laws can charge for possession, distribution, and cultivation.
Any amount less than 28.5 grams of cannabis can be charged as simple possession. Any amount more can be charged as distribution, regardless of a medical marijuana card.
the defendant must be in possession of marijuana. Additional factors will apply based on the type of charge.
Simple possession of marijuana, anything less than 28.5 grams, will be charged as a civil infraction and can result in a fines up to$100. The penalties can increase if found in possession in specific locations, such as near a school.
Possession over 28.5 grams can result in a misdemeanor and incarceration up to six months, and a penalty not to exceed $500.
Distribution of marijuana can be charged as a felony and will result in code 11360. Police must find a reason to believe the marijuana found could not be used just for personal use.
Cultivating marijuana can be charged as a felony and can result in up to 36 months of incarceration.
If no intent to sell exists, penalties will be geared towards a diversion program under Penal Code 1000 or Proposition 36.
Know your rights as a medical marijuana patient; go to this site to learn more:
National Organization for the Reform of Marijuana Laws (NORML)
California Health and Safety Code 11350 prosecutes drug possession by category or schedule. The schedules are in order from the most to the least serious. See the full list here:
Schedule I: These are the drugs with the highest risk of dependency and abuse. They include Marijuana, Heroin, and LSD.
Schedule II: These drugs still run a high risk of dependency and abuse, but have a few medical treatment applications. They include Morphine, Meth, and Cocaine.
Schedule III: These drugs have a smaller potential for dependency and abuse, and are widely accepted as medical treatments. They include testosterone, ketamine, benzphetamine, and some depressants.
Schedule IV: These drugs have only a minor risk of dependency and abuse, with wide medical usage, but possession of a large quantity of them can lead to drug charges. They include barbital, sedatives, and tranquilizers.
Schedule V: These drugs have a very low risk of dependency and abuse. Many of these drugs still require a prescription. They include cough suppressants and Tylenol.
To be convicted of possession the following must be true:
- The defendant possesses illegal drugs schedule I-V, or
- The defendant possesses legal drugs without the necessary prescription, or
- The defendant possesses more than the legal amount of prescription drugs
The defendant must exercise control over the drugs or substance, and understand the illegal nature of the substance.
The penalties for drug possession vary widely based on the type and amount in possession.
A charge of drug possession can result in an infraction, misdemeanor, or a felony.
A college student at a party is stopped by police. The policy discover a bottle of Codeine that he bought from a friend hiding in his jacket. He does not have the necessary prescription. The student can be charged with drug possession.
Possession for Sale
California Health and Safety Code 11351 prosecutes possession for sale by category or schedule of the drug or substance. The defendant must possess enough of the drug or substance to substantiate a sale, and authorities must have a reasonable suspicion that the defendant intended to sell.
To be convicted of possession for sale the following must be true:
- The defendant is in possession of illegal drugs or substances; and
- The defendant possessed a sufficient amount of the substance that could be sold; and
- The defendant intends to exchange the drugs for money or other valuable goods.
The penalties for possession for sale vary according to the amount and type of drug or substance in possession, and the defendants past criminal history. A charge of possession for sale can result in incarceration between two and four years, but that amount can increase quickly with past criminal history and/or aggravating circumstances (like a sizeable amount of drugs or substances for sale).
A man borrowed his friend’s car for the night, and was pulled over by the police who had a search out on his friend’s license plate. If the man was unaware of his friends possession, he cannot be charged with possession for sale.
California Health and Safety Code 11352 dictates that any 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 drugs or illegal substances is guilty of sales and transportation of a controlled substance.
Any means of transportation can count towards this charge. You do not need to be in physical possession of the drugs or substances to be charged with transportation. Exercising control over the movement of the drugs or substances is enough to warrant a charge.
To be convicted of transportation the following must be true:
- The defendant transported illegal drugs or substances; and
- The defendant possessed a sufficient amount of the substance that could be used; and
- The defendant was in control of the substance and was aware of the presence of the substance as well as its illegal nature.
A charge of transportation can result in a felony. This can mean incarceration in county jail for up to one year, or three, four, or five years of incarceration in state prison. It can also result in fines not to exceed $20,000. The penalties can increase based on criminal history, amount of substance, and the distance the substance traveled.
A man is approached by his friend, a methamphetamine dealer, and is asked to drive him to a location where he can deliver a package of drugs. They get stopped by police along the way. If the man was aware of the drugs in the car, he can be charged with transportation.
California Health and Safety Code 11379.6 charges for manufacturing for anyone who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance.
To be convicted of manufacturing the following must be true:
- The defendant was in possession and control of drugs or illegal substances; and
- The defendant intended to manufacture those drugs or substances.
A charge of manufacturing most often results in a prison term of up to seven years, or a fine not to exceed $50,000, or a combination of both imprisonment and a fine.
The prison term will increase if there are previous criminal convictions, and/or depending on the location of manufacturing (i.e. near a school or drug treatment facility).
A man is at a dealer’s house buying meth. The cops raid the house, find the drugs and means to make them, such beakers and hoses, and charge both men with manufacturing. The buyer may be able to prove that he was not involved with the manufacturing to lessen his punishment.
Under the Influence
California Health and Safety Code 11550 charges for being under the influence for any person who is under the influence of any controlled substance.
You can be charged with being under the influence if the police are able to detect, in any manner, your drug usage. You do not need to show impairment to qualify.
You must currently be under the use of an illegal drug or substance to be charged with being under the influence.Currently, this can mean up to five days after use, as long as you are not in withdrawal.
Marijuana is not included in this law.
To be convicted of under the influence the following must be true:
- The defendant willfully and illegally used a drug or controlled substance; and
- The defendant was under the influence of that drug or controlled substance.
A charge of manufacturing can result in imprisonment in a county jail up to one year, informal probation of up to five years, drug counseling and/or community service. These penalties will depend on the “schedule,” or class, of drug(s) used.
A woman is stopped by police for a broken taillight. When they approach the window, they notice used needles and other drug paraphernalia on her car seat, and suspect her of being under the influence of heroin. She does not need to show outward signs of usage to be charged.
Diversion programs are offered by police departments both to divert first-time drug offenders from falling into a pattern of drug abuse, and to save the state money by deflecting incarceration. In each case, the prosecution has the ability to offer diversion programs as penalty. If the diversion program is successfully completed, the criminal charges against you will be dropped.
Drug diversion normally involves a substance abuse class and regular drug testing. You will be given a schedule of classes or counseling sessions to complete. The judge will accept your proof of completion certificate at the end of the program.
The Court’s only other role in diversion programs is to mediate the initial agreement between the prosecutor and criminal defense attorney.
The diversion programs operate through Deferred Entry of Judgment (DEJ), meaning that your sentence will be deferred and put on hold while you complete the diversion program.
Successfully completing the diversion program will result in dismissal of your case. Not successfully completing the program will result in criminal charges and continued sentencing for the crime.
To qualify for a diversion program the defendant must plead guilty. Once the program is completed, the plea will be erased.
There are two types of drug diversion programs:California Penal Code 1000 and Prop 36.
California Penal Code 1000 is only for first-time offenders of simple possession. Prop 36 is for repeat offenders or those who did not successfully complete California Penal Code 1000.
Prop 36, or Change in the Three-Strikes Law Initiative, is a type of drug diversion program that requires non-violent drug offenders to pursue treatment and rehabilitation instead of facing incarceration.California Penal Code 1210 and 1210.1 contains Prop 36.
To be considered for Prop 36 you must plead guilty to your drug charges. A judge will determine beforehand if you will qualify for Prop 36 with a guilty plea. You will then be given a program of treatment and rehabilitation to complete. If successfully completed, your drug charge will be dropped.
The treatment and rehabilitation can include:
- Detoxification procedures,
- Drug education classes,
- Outpatient or residential treatment, and/or
- Follow-up services.
Prop 36 was first passed in July, 2001, and revised in 2012. The revisions created two major changes:
- Third-strike offenders could only receive a 25-to-life sentence if the third felony was serious and/or violent in nature; and
- Those currently serving long prison sentences became eligible for review and petition if they met the qualifications. After the amendment was passed, over 3,000 convicted felons became eligible for review and petition.
Prop 36 is only an option for those who have not been convicted of a violent or serious felony under California’s “Three- Strikes” law. You will not qualify if you have been incarcerated for a violent or serious felony in the last five years, if you possessed a firearm in the case you were charged for, or if you refused treatment.