If you are found in the possession of one or more illegal drugs, either for sale, distribution or even for personal use, you might be apprehended to face drug possession charges. A person found guilty of this crime faces punishment depending on the type of drug he/she has been caught with and the circumstances of his/her arrest. There are many reasons a person can be arrested for drug possession. Whether it is a case of mistaken identity or you have a drug problem or other reasons, it is important to seek legal help when arrested. For many years, Darwish Law has been providing criminal defense services for clients in Santa Ana, California, and we have represented clients who are charged with drug-related crimes including drug possession. We invite you to contact us in case you need immediate legal services.
Legal Definition of Drug Possession
Drug possession is legally defined as being found in possession of a controlled substance. A person can be found in possession of drugs either for personal use, sale or distribution. There are different types of drugs and so, punishments for this crime will depend on the type of drugs that have been found on your person as well as the circumstances surrounding your case. While these charges usually concern Cocaine and Methamphetamine, they can also apply to substances commonly thought of as medications.
You will be found guilty of this crime if it is established that you were the one who was in actual possession and control of those drugs. This means that if the drugs are found in your hands or on you, you will be considered “in possession of drugs.” You can also be guilty of drug possession if you have the power to control the drugs and you had the intention of using or disposing of them.
Drug Possession Laws
The regulations on drug possession are usually governed by state and federal laws and they vary greatly from one state to the other. Generally, what prosecutors need to prove for a person to be sentenced for a drug possession offense is that the person was intentionally and knowingly in possession of an illegal drug or a scheduled drug without any valid prescription and in an amount sufficient to be used as a controlled substance. The prosecution must prove that the offender knew that the drug in their possession was illegal or controlled and that he/she was found in possession of the substance or it was established that they had control over it.
The person could have been in possession or control of the substance alone or with another person. The kind of possession proved, in this case, could be constructive, whereby the offender is not in direct possession of the said substance but he/she has the right to access and hold it. This means that you could be found guilty of this offense if drugs are found in a locker and it is believed to be in your possession.
The legal definition of possession involves a person knowing of something and has physical control of it, which is basically actual possession. It could also involve a person having power over something with the intention of controlling it, which is what is called constructive possession.
The law on drug possession also prohibits a person from possessing certain types of chemicals as those used in manufacturing and drug cultivation. There is also a ban on the possession of items that are related to drug use such as syringes and crack pipes.
What this means is that drug possession law is quite broad and so, penalties will vary, depending on the type of drug you have been found in possession of, the amount of the drug and the area where the offense has happened. Charges could range from simple possession with the intention of using or distributing to severe cases that attract higher fines and longer jail terms.
California Regulations on Possessing Drugs
The state of California treats drug possession as a very serious crime. The penalties levied on a person found guilty of this crime depend on the type of drug, the amount of drug found in their possession and what the person intended to do with the drug. More severe sentences are for second-time offenders who have been charged with the same or similar offense before.
For anyone arrested for the crime of drug possession, it is important to get in touch with an experienced attorney as soon as possible. There are legal rights for people who have been criminally accused of different crimes and so, your attorney will be there to ensure that all your rights are respected.
For many people, drug possession entails being found guilty of possessing hard drugs such as cocaine, marijuana, and heroin. While this may be true to some extent, many people who are charged with this crime today are those found in illegal possession of prescription drugs. Prescription drugs, when used correctly, may not bring any harm to anyone. However, if abused, they could be very dangerous to the lives of abusers and people related to them.
There are people who are wrongly accused of drug possession and thereafter arrested for being in possession of prescribed drugs, though not in alarming quantities. There are possible defenses that a smart attorney can utilize to ensure that you are well represented.
According to the California Health and Safety Law, there is a long list of controlled substances, which include:
- Opiates, such as Acetylmethadol, Allylprodine, Alphacetylmethadol (except levoalphacetylmethadol), Alphamethadol, Alphameprodine, Difenoxin, Ketobemidone, Tilidine, Proheptazine, Phenadoxone, and Norlevorphanol among others.
- All drugs containing acetyl fentanyl and its derivatives
- Any substance containing thiophene analog of acetyl fentanyl and its derivatives
- All opium derivatives including heroin, Acetorphine, Pholcodine, Myrophine, and Methyldesorphine among others
- All hallucinogenic substances including Cannabis, Mescaline, and Psilocyn
- Depressants, such as Mecloqualone and Methaqualone
- Any substance which has been prepared using any quantity of Cocaine, Fenethylline, and N-Ethylamphetamine on the base, as these have stimulating effects on a person's Central Nervous System
In California, there are two general categories for the crime of drug possession:
- Simple possession
- Possession with the intention of selling
The state's Health and Safety Law separates all offenses that relate to controlled drugs, which were initially classified as controlled dangerous drugs or narcotics from other offenses that relate to a substance like marijuana. There are separate offenses for possession of methamphetamine and phencyclidine too.
Drug Possession for Sale
A simple possession charge can occur if a person was found guilty of having, in their possession, one or more of the drugs provided under the Health and Safety Law.
Possession for sale charge or the charge for the purchase of drugs for the resolve of reselling, on the other hand, occurs if the prosecutor has enough reasons to believe that the defendant had the intention of drug dealing or drug pedaling.
If a person is found guilty of being in possession of substances with the intention of selling, they could face a more severe charge and higher penalties. Sale of drugs in California is considered a worse offense than simply being in possession of drugs.
The main key in this type of offense is the offender’s intent, which means that if the court believes that you had the intention of selling the drugs, you might end up getting a more serious conviction even if you did not actually sell the drugs. A successful conviction of drug possession for sale can be charged as a felony, carrying more severe penalties.
Generally, a drug possession charge can be convicted as either a misdemeanor or a felony. A simple case of drug possession will be punishable by a fine of not more than $1000 and/or a year in county jail.
A felony drug possession offense attracts a fine of up to $20,000 plus 2-4 years in the California state prison.
The penalties can increase significantly based on the type and the amount of substance that will be found in your possession. The penalties could also increase if there are minors involved in the sale of the drugs.
California Proposition 47
This is a ballot initiative that was passed by voters in California in 2014, advocating for the reduction of certain drug possession charges from felonies to misdemeanors. With the proposition in place, the sentencing structure of people found guilty of drug possession was drastically altered. The proposition brought about a new law, which has made most punishments for drug possession offenses reduced to misdemeanors only, attracting lighter sentences. This law has allowed offenders who were already serving in state prisons for drug possession to send a petition to the court for a fresh resentencing. However, not everyone convicted of drug possession qualifies for resentencing.
Possession of Recreational Marijuana
California voters also decriminalized possession and use of recreational marijuana in 2016 through Proposition 64, which advocates for adult use of marijuana. Under this new law, adult persons of age 21 and above are allowed to buy, possess and even use marijuana of not more than 28.5g in quantity and only 8g for concentrated marijuana.
This should be done in the privacy of their home or in a place that has been approved for marijuana use. Additionally, adults are allowed to possess up to six living cannabis plants within their private residence.
Smoking marijuana is still illegal when one is driving a car or when you smoke in a place where smoking tobacco has been prohibited, as well as in public places.
A person found in possession of more than the allowed amount of marijuana will be punished by incarceration for a period of not more than six months and a fine of up to $500 or both. If you are found in possession of more than the allowed amount of concentrated marijuana, you could be sentenced to jail for a period of one year and/or fined an amount not exceeding $500.
Possible Defenses for Drug Possession
Working with a qualified defense attorney will help you exploit possible avenues that could have your charges reduced or help you escape the penalties that come with drug possession. Fortunately, there are several strategies that your attorney can use in creating an effective defense strategy for you:
Lack of evidence for drug possession
It is possible to be arrested for drug possession when you are actually not guilty of the offense. In a case of mistaken identity, a person could be arrested and charged for drugs that do not really belong to them. If there was more than one person present at the time of your arrest, your attorney may have greater success in arguing your case using this defense strategy. If, for instance, there were drugs in your house and there were many people living in that house, you may argue that the drugs found were not really yours and that you had no idea that they were there.
The drugs were a medical necessity
You cannot be charged with drug possession if the drugs found on you were a medical necessity and there is proof to that effect. If you have a prescription that was issued by a doctor, your attorney could use it in your defense to ensure that you do not get any sentencing.
An unlawful search that resulted in the seizure of the drugs
Most of the searches conducted on drugs are usually done in an unlawful manner. The law guarantees everyone the freedom from unreasonable search and seizure. For this reason, it will be illegal for the police to conduct a search and seize drugs if they did not have legitimate reasons to believe that the person was in possession of the drugs in the first place.
Find a Drug Possession Attorney Near Me
Being found in possession of illegal drugs can be stressful for any person. No one really knows the outcome of a drug possession arrest; you might end up facing steeper penalties or you may be absolved of all your charges. If you are in Santa Ana, California, contact Darwish Law a drug possession defense attorney to understand your position better, your options and your rights. Call our Santa Ana criminal lawyer today at 714-887-4810 and let us devise the best defense strategy for you.