Drug Possession

The most common drug possession charges are Health and Safety Code § 11377 (Methamphetamine) § 11350 (Cocaine) § 11357 (Marijuana). These charges typically refer to street drugs; however, they encompass prescription drugs as well.

Under the law, there are two types of Possession. Actual possession and constructive possession. Actual possession typically refers to drugs being found on your person. Constructive possession means that the drugs may not be on your person, but you knowingly exercised control over or the right to control the drug, either directly or through another person or persons.

In order for the prosecution to prove its case, they must prove that the individual knowingly possessed a usable quantity of a controlled substance.

In order to effectively defend these cases, it is important to understand where the drugs were found. A common scenario involves an individual who happens to be riding in a vehicle where drugs are found under a seat. Prosecutors will typically try to charge all the individuals in the car with possession under the “constructive possession” theory. A knowledgeable defense attorney knows this.

The first step in defending drug cases is to analyze whether the police contact was legal under the 4th Amendment of the Untied States Constitution, commonly referred to as “search and seizure.” For example, if the substance was found on my client was the stop legal? Did the stop occur because of a legitimate traffic infraction or was it because of the client’s race or ethenticity? Did the stop arise out of an officer’s hunch? If the justification for the stop was not legal under the 4th Amendment then a Motion to Suppress Evidence must be brought. If the court grants this motion then the case can be DISMISSED. Thus it is very important for the attorney to explore this aspect of the case with the client.

Health and Safety Code § 11350 and 11377 can be filed as a misdemeanor or a felony. In Orange County, these offenses are almost always filed as felonies.

It should be noted that that for first time drug offenders with little or no criminal record they may be eligible for consideration under Penal Code Section 1000 (also known as “PC 1000”). This law permits first time drug possession offenders ( Defendants accused of sales are not eligible) to attend a 4 month drug class, avoid jail completely, then get the case DISMISSED with completion of the class and no arrests or convictions for 18 months.

Recent changes in the law have also permitted offenders with more then one drug possession offense conviction on their record to attend another program under Penal Code Section 1210 (commonly known as “Prop. 36”) with the result that the person accused avoids jail and gets the matter DISMISSED. However, as opposed to Penal Code Section 1000 discussed above there are many more concerns with regard to eligibility of the Defendant for this program. The Prop. 36 program is usually at least 1-year long and often times much longer with a very intense curriculum and frequent court appearances to monitor the client’s progress. Generally speaking, with successful completion of the program and 3-years without criminal problems the court will dismiss the case. A skillful attorney can qualify even an individual with multiple drug possession convictions for the program with the result of avoiding jail and getting a dismissal of the new charge.