Those arrested in California on the charge of possession for sale of a controlled substance face severe consequences if convicted, including long-term (or even lifetime) difficulty in finding gainful employment due to a drug crime being on their criminal record. Only by availing yourself of an experienced drug crimes defense attorney can you maximize your chances to win in court and save your future.
At The Law Office of David J. Givot, we have a long track record of winning the best possible outcome in California possession for sale cases. Attorney David J. Givot is intricately familiar with both California drug crimes law and with local Coachella Valley court processes. He has what it takes to uncover the weaknesses in the prosecution's case and defend your rights in the courtroom.
For a free legal consultation with David J. Givot, call us anytime 24/7 at 888-293-0396.
How Does California Define "Possession for Sale?"
The California Health & Safety Code, in Section 11351, classifies possessing a controlled substance while having an intention to sell it, as a felony crime.
Controlled substances are drugs that are illegal or restricted in use by the U.S. Controlled Substances Act. These include not only illegal narcotics like cocaine or peyote, but also certain prescription drugs like codeine if used without a proper prescription.
What Must the Prosecutor Prove?
The prosecution must establish the following elements of the crime of possession for sale beyond all reasonable doubt to gain a conviction:
- You had either "actual" or "constructive" possession of a controlled substance.
- You were aware of the controlled substance and of its nature as being a controlled substance.
- You possessed a sufficient quantity of the drug in question to render it "usable" and/or "sellable."
- You had an intention to sell or re-sell the possessed controlled substance.
Some further details relative to how the prosecutor must establish these elements are given below:
California law makes possession of a controlled substance the same as "controlling" such a substance. "Actual" possession means you had the drugs on your person, while "constructive" possession means you had access to and control over the drugs even though they were not physically on your person. When two or more persons controlled the same drugs, it is "joint" possession.
It is necessary that you had knowledge not only of the drug's presence on your person or property (or otherwise under your control) but also of its nature as a controlled substance. This need not mean you knew the name, chemical composition, or likely effects of the drug. It merely means you knew it was, for example, cocaine and not powdered sugar. That is, you knew it was illegal for you to possess it. Oftentimes, an attempt to hide the controlled substance when arrested functions as evidence of knowledge of its nature.
The requirement that there be found enough of the drug to use or to sell does not mean that a large amount must be present. It simply means that "useless traces/residues" of the controlled substance do not count as far as convicting for possession or possession for sale.
If only convicted of simple possession, your punishment will be substantially lighter and you will likely be eligible for a drug diversion program (to avoid jail time). Thus, proving intent to sell is typically the critical factor in possession for sale cases. To be guilty, you need not have actually sold or transported a drug but only intended to do so.
Things that can act as evidence of intent to sell include:
- Possession of large quantities of drugs, more than one would typically consume him/her self. However, many habitual users may stock up on "supplies," so this is not proof in and of itself of intent to sell.
- The drugs' packaging method. If large numbers of drugs are separated into individual bags, balloons, or bundles, this is a sign of intent to sell, though still not 100% conclusive.
- The presence of drug "paraphernalia." Possessing drug paraphernalia, such as injection needles, manufacturing equipment, or weighing scales, is a crime in itself. It is also taken as a sign of intent to sell, however.
Conversely, if the defendant was under the influence of drugs when arrested, this evidence tends against an intent to sell. However, since some dealers are also users, it is not stand-alone proof.
Possible Penalties for Possession for Sale
Again, while simple possession is generally a misdemeanor, possession for sale is a felony crime in California. Those convicted of HSC 11351 can receive from 2 to 4 years in jail and a fine of up to $20,000. The jail term can be exchanged for a probationary period with a maximum one-year jail term.
Also note that, if it is proven that you intended to make multiple sales of a controlled substance, the above-given sentence can be applied multiple times. And a conviction would likely lead to deportation for resident aliens.
Also note that certain substances, like cocaine base, have steeper punishments (3 to 5 instead of 2 to 4 years in jail). And with cocaine, cocaine base, and heroin, possession for sale of over a kilo adds 3 years to the jail term; while possessing over four kilos adds five years; 10 kilos adds 10 years; and 80 kilos adds 25 years. A "weight enhancement" also gets you a fine of up to $8 million, the exact amount depending on how much of which drug you intended to sell.
Additionally, defendants with prior drug felonies on their record can receive 3 extra years of jail time for each applicable prior.
Again, a good defense attorney may be able to get your possession for sale charge reduced to a charge of simple possession in a plea agreement. Of course, avoiding a conviction outright is always preferable, but when this is not obtainable, a reduction to simple possession can reduce your sentence and make you eligible for many drug diversion programs.
Drug diversion programs allow those convicted of non-violent drug crimes to spend time in drug treatment rather than in jail. After completion of the drug program and other terms of the agreement, the charges will often be dismissed. Thus, a drug conviction can be kept off of your permanent police record in this manner.
Common Defenses Against Possession for Sale Charges
David J. Givot has long experience in defending against charges of possession for sale in California, and he has developed strategies specific to each case-type in this practice area.
While every case is a little different and must have a "custom built" defense, here are some of the most common sorts of defenses that we use:
- The defendant did not possess a controlled substance. If the drugs were not yours, you were not aware of their presence, and they were not in your immediate or constructive possession, this defense can be used. It is sometimes especially difficult for the prosecution to prove constructive possession.
- Mere momentary possession. If you only possessed the drugs briefly while in the process of disposing of them, this is a valid defense. However, it cannot work if you were disposing of them to hide the fact of having illegally possessed them in the first place.
- Lack of knowledge of the drug's nature. If you knew of the presence of the substance but did not realize it was a controlled substance, you cannot be convicted of drug possession or possession for sale.
- Possession for personal use only. If you did possess and use the drugs but had no intention to sell them to others, your charge can be reduced to simple possession, which carries a much lighter sentence and may make you eligible for drug diversion programs.
- Your rights were violated. If the drugs in question were found during an illegal search and seizure, which violated your Constitutional rights, the evidence will be inadmissible in court and the charges will likely be dropped. It may also be that it can be shown that police falsified evidence to gain a conviction, in which case the charges will also be dropped.
Contact Us Today
At The Law Office of David J. Givot, we stand with you and fight the charge of possession for sale with both legal acumen and never-give-up determination. David J. Givot knows how to fight for and win the most favorable outcome possible to your case, be that a dismissal, an acquittal, or a reduced charge/sentence.
Contact us today, and anytime 24/7/365, for a free legal consultation and an immediate beginning to your case, by calling 888-293-0396.