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Drug Possession

If you have been charged with drug possession in the state of California, you face significantly more severe sentences, in many cases, than you would face in most other states. To avoid jail time and the acquisition of a criminal record, which can make it difficult to find gainful employment and otherwise disrupt your life, it is critical to enlist the services of an experienced drug-crimes defense lawyer.

At The Law Office of David J. Givot, we have deep experience in defending against the charge of drug possession in the Coachella Valley Region and beyond. Attorney David J. Givot has an intricate knowledge of California drug laws and longtime familiarity with local court processes and court staff in the Coachella Valley, Palm Desert, and surrounding areas. He will know how to build you a solid defense and maximize the chances of a favorable outcome to your case.

Possessing a Controlled Substance

California Health & Safety Code Section 11350 criminalizes the possession of all "controlled substances," except with a proper prescription. A controlled substance is defined as any drug that is either illegal or that requires special permission to possess/use based on the U.S. Controlled Substances Act.

This means that not only illegal narcotics like cocaine but even prescription drugs like codeine can lead to a drug possession charge. Two classes of drugs, however, are excluded from HSC 11350 and dealt with elsewhere: marijuana (HSC 11357) and meth (HSC 11377).

What Must the Prosecution Prove?

There are four elements of the crime of simple possession of a controlled substance that must be proven beyond all reasonable doubt to gain a conviction:

  1. The defendant did indeed possess a controlled substance.
  2. The defendant was aware the he/she possessed it.
  3. The defendant was aware of the drug's being a controlled substance.
  4. The defendant possessed enough of the drug that is was "usable."

Note that "possession," in this context, need not always mean having the drug in your hand or on your person. It can also include having it under your control, though kept in an apartment, vehicle, or other location. And further, this control can be exercised either directly or via another person. It is also possible for a controlled substance to be jointly possessed by more than one person, and this would still make you guilty of drug possession.

However, the mere fact that drugs were found on you, near you, or among your property does not automatically mean you "possessed" them. It must also be shown that you knew the drug was present and knew it was illegal for you to possess it. 

Finally, it is not enough to find just trace quantities of a drug, to gain a conviction. Nor is it, however, necessary to find a large amount or an amount sufficient to render the "high" that the drug is typically used for. So long as a "consumable" amount is found, it is considered "possessed."

Possible Penalties

In most cases, drug possession (HSC 11350) is a misdemeanor offense, punishable as follows:

  • Up to 12 months in county jail.
  • A maximum fine of $1,000.
  • In many cases, a drug diversion program can substitute for the jail term.

When a defendant has a previous conviction for felonies such as sex crimes, child molestation, or vehicular manslaughter, drug possession may be charged as a felony, punishable by 16 months to 3 years in county jail.

While this may seem harsh, California law used to be harsher before Prop 47 passed. At that time, all violations of HSC 11350 were treated as felonies. Prop 47 passed in 2014. Those convicted before its passage can petition for a sentence reduction to a misdemeanor, but only those charged following its passage are ensured to benefit from the changes it made.

Also note that non-US Citizens convicted of even simple drug possession can be deported and refused re-entry. This is true not only of illegal but also of legal aliens.

Drug Diversion Programs

While many punishments for drug possession in California are harsh, in the case of misdemeanor level first-time offenders, there is a good possibility of getting jail time exchanged for entry in a drug treatment program, called a "drug diversion program" since it diverts non-violent offenders away from an already over-crowded jail/prison system.

Under California Prop 36, passed by 60% of voters in 2001, non-violent drug offenders can be given probationary terms in place of incarceration. In exchange, they must complete a state-approved drug treatment program and abide by the terms of their probation. Failure to fulfill the requirements can lead to time in jail or prison.

In many cases, a special "drug court" will handle your case if you are eligible for a drug diversion program. And you may also be able to qualify for "deferred entry of judgment," which "delays" your being sentencing while you complete the drug treatment and other requirements. In the end, your case can be dismissed to avoid a permanent criminal record. 

A good drug crimes defense attorney will know who can qualify for specific drug diversion programs and know which judges and prosecutors have a history of allowing for such an alternative, perhaps, as part of a plea agreement. While a dismissal or acquittal is always the first choice, when that becomes impossible, it is critical to have an attorney who can get you into any drug diversion program you may qualify for to keep you out of jail.

Common Defense Strategies

At The Law Office of David J. Givot, we know by experience what are the most effective defenses to use against the charge of drug possession in California. And we also know when it is the best time to use each possible defense, based on the details of each case we handle.

Here are some of the most common defenses we utilize:

  1. Lack of possession. The drugs were not on your person nor under your control. Perhaps, they were planted near you or among your property by someone else.

  2. Lack of knowledge. You did not even realize the drugs were present or, if you did, you did not know that they were a controlled substance but supposed them to be legal drug or some other substance.

  3. Mere temporary possession. If you were in the process of disposing of the controlled substance, for some reason other than an attempt to prevent police from discovering them, you are allowed to possess them for a short while as you dispose of them.

  4. Valid prescription. If you had a valid prescription for the drugs in question, though they be a controlled substance, you are not guilty of the crime of drug possession.

  5. Illegal search and seizure. If law enforcement obtained the drugs or other evidence against you via an unconstitutional search and seizure, the evidence will be inadmissible in court, likely leading to a dismissal of your case.

Related Offenses

Some other crimes that often come up in conjunction with the charge of simple drug possession (HSC 11350) include the following:

  1. Possession for sale (HSC 11351): If the prosecution can show you not only possessed a controlled substance but did so with the purpose of selling it, you could face a felony charge and could be sentenced to anywhere from 1 to 4 years in county jail. With this charge, no drug diversion programs are available, but a good lawyer may be able to get the charge reduced to simple possession to open up the possibility of a diversion program.

  2. Sale/transport of a controlled substance (HSC 11352): Actually selling drugs is a felony and can get you up to 5 years in jail, and transporting drugs across three or more county lines can get you up to 9 years in jail.

  3. Under the influence of a controlled substance (HSC 11550): Actually using illegal drugs such that you are brought under their influence " to any detectable degree" is a misdemeanor that can bring up to a year in jail, with possibility of drug diversion eligibility.

  4. DUI drugs (VC 23152e): Driving while under the influence of drugs is a misdemeanor offense, punishable by a fine and fees of up to $1,800, up to 5 years of probation, a 6-month license suspension, and possible jail time. An aggravated DUID (4th offense or causing injury/death) can be a felony and bring even more severe punishments.

  5. Present while a controlled substance is being used (HSC 11365): If you are present while others are using an illegal drug and you do or say anything that encourages or helps them in doing so, it is a misdemeanor crime punishable by up to 6 months in county jail. Marijuana is excluded from HSC 11365, but many other drugs are included.

Contact Us Today

At The Law Office of David J. Givot, we stand ready to apply our legal expertise in defending against charges of drug possession to your case and to fight tenaciously to win you the best possible outcome, be that a dismissal, an acquittal, or a reduced charge/sentence. 

Feel free to contact David J. Givot anytime 24/7 for a free consultation by calling 888-293-0396


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