The Health and Safety Code section 11351 regulates the possession of a controlled substance for sale crime. Possessing a controlled substance to sell is a severe crime in California. The crime applies to all controlled substances. It does not matter whether or not they are illegal or prescribed by a doctor. Most of these controlled substances have records on the list of federal controlled substances. Hence, if found guilty, you are most likely to face federal charges too. Conviction of possession for sale of a controlled substance translates to a two to five years in jail with or a fine of $10,000. Besides the punishments, you also get to lose the ability to obtain employment or even get public benefits. Therefore, if you are accused of violating Health and Safety code 11351, act quickly and contact the Orange County Criminal Defense Attorney Law Firm. We will work to have your freedom protected, and your criminal record cleared.

Legal Definition of Possession of a Controlled Substance for Sale

Possession, as the word suggests, is having direct or immediate control over the drug. In this case, it refers to a situation where the substance was with the immediate person. The said person does not have to be found holding the substance to possess it. As long as the person has control over it or shares it with another person, it shows a sense of possession. There is also a situation where the drugs are found in an area that the accused exercise command. Such areas include a car, home, or office.

A controlled substance typically means a chemical or a drug whose production and the government regulates distribution. The statute that governs any form of the drug is the United States Controlled Substances Act (USCSA). The USCSA has the authority to make its way through interstate commerce.

The USCSA provides a mechanism for drugs to be administered. The advances to affix, eliminate, or change the plan of the substance is established by the Drug Enforcement Administration (DEA), or petition from any other party such as the drug manufacturer or a medical and pharmaceutical association.

Legally, possession of a controlled substance for sale is covered by Health and Safety code 11351. The statute prohibits illegal sales, purchasing, or distribution of narcotics. Here are examples of common drugs that the legislature deems controlled substances:

  • Opiates (heroin) and opiate derivatives (Meperidine, morphine sulfate)

  • Depressants (Xanax, Klonopin)

  • Stimulants (cocaine, ecstasy)

  • Hallucinogens(Phencyclidine, magic mushrooms)

  • Anabolic steroids (testosterone, danazol)

  • Prescribed medication

Note that possession of certain drugs for sale, like marijuana and methamphetamine, are separate offenses covered by Penal Code 11359 and 11377, respectively. The prosecutor uses laboratory tests and witnesses from experts to determine the drug chemical makeup and ascertain prosecution. On top of that, the prosecutor will convict the defendant if proven that:

  • The defendant owned or bought the drug

  • The defendant was aware of the drug

  • The defendant was aware of the controlled substance classification

  • The defendant held enough amount of the drug to either use or sell

  • The defendant possessed the drugs with the intent of selling or reselling

The Health and Safety section code 11351 is also defined by three separate types of possession.

  • Actual possession, which involves physical possession whereby the defendant carries the controlled substance in a bag, briefcase, or pocket

  • Constructive possession - Constructive possession is difficult to identify since it can only be proved by circumstantial evidence. The drug is said to be somewhere else, and the defendant knows and has control over it.

  • Joint possession - It involves shared ownership whereby two or more people own the drug.

Potential Penalties for Conviction

Any person arrested for possessing a controlled substance for sale in Orange County is charged with a felony. The punishment contains 2-4 years in county prison and a fine of $20,000, which is the maximum. The judge can also opt for probation with a one-year jail term. In a situation where the defendant engaged in multiple sales, the prosecutor can impose penalties for each intended sale.

In addition to possible penalties, the legal immigrants and aliens who violate PC 11351 HS are deported. Their deportation is mandatory, with no chance for lawful re-entry in the state. All hope is not lost as with an experienced criminal defense attorney, and the accused may negotiate their plea agreement to have lesser immigration sentencing. The possible fewer punishments could either be by obtaining asylum or getting a hardship waiver.

Drug diversion is meant for those people who commit non-violent drug possession crimes. The convicts get into the drug diversion program. Its primary purpose is to encourage treatment over prison for drug crimes. The accused serve their sentences in a rehabilitation center instead of jail. As a misdemeanor offender, the court may allow the accused to enter the program. That is upon pleading guilty of the charge against possession of a controlled substance for sale. The sentencing may be delayed or released. However, the accused must complete the program successfully and meet some requirements to have the case dismissed.

A criminal defense attorney can negotiate for your chance to get into a drug diversion program. Since the drug diversion is not granted to everyone and it has limitations. One of the restrictions being the application of the sales of drugs possessed. The program is an excellent advantage as you will be able to avoid other criminal consequences. Getting into this program means that you do not have to disclose drug charges when applying for a job or an apartment.

There are other court options in addition to state law that allows the prosecutor to pursue increased penalties to the defendant with prior offenses. The court also has a choice in influencing the sentence relating to the situations of the specific trial. For instance, hiring a minor to sell or distribute controlled substances, the penalty for such crime ranges from three to nine years in the county prison.

Probation Terms

When the judge grants your probation, the court imposes specific terms and conditions that will apply to the offense you were charged with. The probation conditions include:

  • Not to breach any rule other than a traffic offense.

  • See the probation officer who supervises you as described in your probation terms.

  • Complete the stipulated community service

  • Unspecified drug testing

These are among the few probation terms in which the court can issue a convict. If the defendant violates one of the terms, the jury can sentence the defendant to the maximum period as commanded by the rule of law.

Common Defenses for Possession of a Controlled Substance for Sale

You need a skillful criminal defense attorney who will defend you using an adequate defense strategy when faced with charges of a severe crime such as possession of a controlled substance for sale in Orange County. Here are several successful defenses that could lead to the dismissal or reduction of your charges:

  1. Police Officer Misconduct

The law grants citizens a constitutional right to be free from unreasonable search or seizure from government officials. A police officer cannot perform a search where the search warrant is absent, perform a search that exceeds the scope of the authorization, or make illegal detention. Police officers use certain formalities to conduct arrests. The formalities include having the probable cause of arrest, reading the Miranda rights before interrogations, and searching the vehicle for the evidence of the crime. A criminal defense attorney can argue that you may be a victim of the police misconduct in the illegal search and seizure and have your charges dismissed or significantly reduced.

  1. Lack of Intent to sell

You may possess a controlled substance without an intent to sell it. If you can prove that the drugs were for personal use, your case can be classified as a less severe offense. For the defense to assert this, you have to prove that you possessed the drug for a transitional period. On top of that, you carried the drug to dispose of or destroy it. Finally, you did not prevent the police officers from obtaining the drug, being able to challenge the fact of possessing the drugs, is the best bet. The jury can be convinced that you only possessed the drugs in a short period, and you were getting rid of them.

  1. Lack of Control or Possession

The prosecution has to prove your control over the substance conviction of possessing a controlled drug for sale. In case it is a constructive possession, the criminal attorney can argue that you did not have the direct ownership of the substance to sustain a conviction against you.

  1. Lack of Awareness of Knowledge

You cannot be convicted under PC 11351 HS if the prosecution cannot prove that you had the classification knowledge of the controlled drug. Neither can you be convicted if you were unaware of the possession of the drug, or you did not recognize the drug. This defense would work best if the defendant had no prior criminal record.

For example, on your way back home from work, you meet your neighbor who was going for an errand. The neighbor asks you to help him carry a bag and go with it to your house. The neighbor would pick it from your home once he is back. As you reach your house, a group of police officers surround you and place you under arrest. The bag contains cocaine, as the police confirm during the search. Although you had the cocaine in your possession, you were not aware of the content in the bag. Since you did not know the substance, you cannot be convicted.

  1. Valid Prescription

A reasonable defense attorney should be able to defend you if you were found in possession of controlled drugs. The attorney can challenge the court by proving a valid prescription from a doctor, dentist, or physician. Having a condition that is treated with a controlled substance is an added advantage. The attorney convinces the court that you had a valid prescription and that your possession was not illegal.

  1. Lack Of Proof Of The Substance

The ability to prove that the substance is indeed a controlled substance is a strong defense. After all, you may possess herbs that resemble Marijuana and by mistake land you into prison. A qualified attorney will challenge the lab report stating that the collected substance is a controlled substance. Challenging the result will leave the case in doubt and the prosecutor will need to prove the substance was drugs and not herbs. This will lead to additional expenses and time since the court will need to call a lab tech to testify at the trial. The court might not be ready to spend more and the technician might be busy somewhere else.

  1. Usable Quantity

Usable quantity simply means just enough amount that one has to ingest and not to feel its effects. Mainly if found with a small amount of drug, the attorney can challenge the court that you possessed a minimal amount that is usable. And that it was for personal use.

  1. Drugs Belong To Another Party

The defense can argue that the controlled substance did not belong to the convict. The defendant can say the owner forgot in his car, and you were not aware of them being in your car or apartment. You can push the prosecutors with an excellent criminal defense attorney to prove that the drugs you were found with belonged to someone else.

  1. Entrapment

Police can set up a sting operation and induce you to commit a crime you did not want. If the cops encouraged you to pass the drugs to another person, it is called entrapment. It mostly occurs when the state is providing drugs that are being bought.

Ways In Which The Prosecution Can Prove Intent to Sell The Substance

To be convicted for possessing a controlled drug for sale, the jury must prove that the defendant knew the possessed substance. Moreover, the substance could be used as a narcotic. The defendant must have known the substance present.

The prosecutor must also prove that the defendant possessed usable amounts, in this case, large enough for use and sale, except for useless traces and debris, which cannot be used in court as evidence. If the amount was large and packed into smaller packages, the defendant can be presumed to have had an intent to sell the substance.

The prosecutor must show facts or circumstances that prove the defendant wanted to make a sale. The evidence should be convincing enough to show that it was not only for personal use. Here are common ways in which the prosecutor must prove the intent to sell the controlled substance:

  • That the amount of substance found in your possession exceeded the substantial amount for use

  • When the police officers were searching, they found large sums of money in small denominations.

  • The controlled substance was found in a large amount and divided into smaller paper bags.

  • The area you were located with the controlled substance is well known for drug sales.

  • You were found in possession of scales and other weighing machines.

  • Many people visit your place of work and stay for a short time.

  • Your statement upon arrest like, I sell this stuff on occasion.

  • Communication specifically through text messages from buyers

Statute of Limitations

Statute of limitations refers to the law that offers legal deadlines for the government to file a case. If the evidence is not presented to the judge within a specified period, the charges cannot be submitted later. Each case is unique, and so each criminal statute has a time limit. You must understand the Statute of Limitations if you face charges against possession of a controlled substance for sale.

In Orange County, possession of a controlled substance is illegal. Most of the possession crimes are punished as misdemeanors and carry up to a 0ne-year jail term with potential fines. Drugs like marijuana are an exception since they carry lighter punishments. The punishment for marijuana is a maximum of six months in prison for a considerable amount but fines for smaller amounts (28.5 grams).

Crimes that carry possible penalty imprisonment has a Statute of Limitations period of three years. It merely implies that the prosecution of the crime must be within three years of the crime commission. The time limit is for police and the prosecutors to file the case against a violator of possession of a controlled substance for sale. However, this does not mean that the case must be charged, tried, and convicted within three years.

In many cases, by the time the three-year period elapses, the police may have no drugs to present as evidence. They thus make it difficult to justify the charges against the defendant's connection with the drugs. When the police discover any illegal drug possession, the defendant is immediately arrested. They file the allegations directly, and the drugs are taken to the lab and tested to confirm their illegality.

The only situation that the police and the prosecutor may take longer to file a drug possession crime is during large scale investigations or trafficking networks. The police will work through undercover or subtle policing strategies. Gather enough evidence and file charges in the early stages. They might also hold to see if they can find other persons involved in the trade.

Related Offenses for Possession of a Controlled Substance for Sale

Several crimes have secure connections with the Health and Safety section 11351 HS. Some are typically charged alongside 11351 HS, some in lieu, and some involve similar conduct. Here are some of the related offenses:

  1. Code 11352 HS

The law involves the sale or transportation of a controlled substance. It can be the same controlled substance that is illegal under 11351 HS. The only difference in 11352 HS is that it has the actual transactions for the substance. It is punishable as a felony with 3 to 5 years in jail and 3 to 9 years in prison if the transportation crossed more than two counties.

  1. Code 11377, 11378, and 11379 HS

They represent possession of methamphetamines, its sale, and its transportation, respectively. The codes are very similar to code 11351 HS. The only difference is that these laws cover less dangerous drugs. Code 11377 HS is a wobbler while code 11378 and 11379 are felonies subjecting the defendant to 16 months to 9 years in jail.

  1. Code 11359 HS

The law involves possession of marijuana for sale. The accused is charged with a felony if found in possession with an intent to sell marijuana. The accused faces 16 months to three years in jail and a $10,000 fine.

  1. Code 109575 and 11355 HS

The two sections codes deal with the selling of an imitation of a controlled substance. Imitation is a fake substance in that it can be confused with the right one. It has similar appearances outward with the genuine drug. It is a crime to manufacture, sell, or possess an imitated drug. The violators of this law get a penalty of imprisonment for six months or a fine of $1,000.

  1. Code 11357.5 and 11375.5 HS

These code sections of Health and Safety prohibit the sale and possession of synthetic cannabis and stimulants. The acts are punished as misdemeanors. The defendant gets jailed for six months or a fine of $1,000.

  1. Code 11363 HS

This Health and Safety Code states that it is a crime to open or maintain a drug house. Especially with the intent to continue selling the illegal substance in that house. The offense is a wobbler and mostly charged alongside with possession for sale of a controlled substance. The possible felony punishment is sixteen months to three years in prison.

Find an Orange Criminal Defense Attorney Law Firm Near Me

If you have been arrested for drug crimes like possession of a controlled substance for sale, you must speak to a criminal attorney with significant experience in defending drug crimes. Orange County Criminal Defense Attorney Law Firm has the best attorneys with many years of experience. We understand how a person's life can be affected if faced with a felony drug charge. Call us at 714-740-7848 as soon as you can so we can start to build your case and challenge the prosecutor's evidence.