Drug Charges

Drug related charges run the gamut from minor possession, which usually results in a court referral to a drug diversion program to the very serious charge of drug manufacturing, which carries the potential for a long prison sentence. Whatever the charge, representation by an experienced Orange County drug possession defense lawyer can make a huge difference in the outcome. A good defense lawyer is often able to get minor drug use or possession charges dismissed outright and sales charges reduced to simple possession, with a possibility of dismissal if a drug diversion program is ordered. For the more serious charges that carry sentences of confinement, an experienced attorney can often get the sentence of confinement waived and a grant of probation ordered instead of a jail or prison sentence.

If the charge is manufacturing drugs, the attention of an attorney with experience in this area of the law is crucial. This charge is very technical and requires a comprehensive knowledge of the elements and evidence the prosecution must have to convict. I have had many victories in defeating lab cases by showing that the defendant did not possess "precursors" and thus did not have a lab in place.

Depending on the charge, the circumstances of the offense, and the offender, someone convicted of drug charges may be eligible for a drug diversion sentence. Briefly, drug diversion programs fall under two basic schemes: "Penal Code 1000" and "Prop 36". Penal Code section 1000 allows for what is known as a "deferred entry of judgment." Deferred entry means that the Court will postpone a judgment of guilty and allow the offender to complete a drug program. Upon successful completion of such a program, the charge is dismissed entirely. Under Proposition 36 certain drug offenders must serve his or her time in drug treatment rather than jail or prison. Upon successful completion of the Prop 36 program, the offender can petition to have his or her conviction dismissed.

I am an experienced Orange County drug possession defense attorney with knowledge in all aspects of drug-related crimes in California. I have defended hundreds of clients charged with simple possession, sales and/or possession for sale, and manufacturing charges with many excellent results. My twenty plus years of experience have taught me how to identify the weakness in the prosecution's case, expose police bias in their reports and testimony, and in the case of drug sale allegations, how to put forth the case, as it often is, that my client is a user who needs treatment, not a dangerous criminal.

Contact me at any time to set up a confidential consultation with a drug possession defense attorney in Orange County without charge. I will work with you and your family to provide a fee structure that best suits your circumstances.

SIMPLE POSSESSION (Health and Safety Code section 11350)

Simple possession is made illegal under the California statute by Health and Safety Code section 11350. A violation of this section means that someone was found with a "controlled substance" in their possession, usually in a small quantity and without any indicators that there was an intention to sell the substance. "Controlled substance" includes a wide variety of drugs and chemicals regulated by California statute and the United States Controlled Substances Act, but here we will refer to these substances simply as "drugs." (Some drugs are not regulated under this section, but rather under Health and Safety Code section 11377, while some drugs are regulated under section 11377 and this section. Section 11377 is discussed below.)

Broadly speaking, the drugs regulated by section 11350 are opiates, opium derivatives, hallucinogens, depressants, cocaine, and salts. Many prescription drugs are included among the regulated substances. If someone is found with a regulated prescription drug but no corresponding prescription, it may be a violation of this section. Simple possession of marijuana is not a violation of this statute.

When someone is found to have an illegal drug in his or her immediate possession, that is, in a location such a pocket or backpack, or anywhere that the person can immediately access, it is known as "actual possession." However, an arrest under this section does not require the actual possession of the drug. If the drug is found in a place where someone exercises control, in a house for example, even if that person is not actually "holding," it is still considered possession.

It is not unusual for someone to get arrested even if he or she did not know the drugs were in the location where they were found; for example, a person may be arrested for drugs his or her housemate kept inside the house. While such a charge may be defeated by presentation of convincing evidence, a person who finds him-or herself in this predicament should not assume the prosecution will realize it made a mistake. It is always wise, whether you believe you are innocent or not, to consult with an experienced drug possession defense lawyer in Orange County immediately.

SENTENCING

The good news is that simple possession charges are eligible for what is commonly called "deferred entry of judgment," which is codified in the California Penal Code, section 1000.

For those not eligible for a deferred entry or a diversion program, simple possession of most drugs under this section is a felony punishable by probation and/or up to one year in county jail or imprisonment in county jail for 16 months, or two or three years. However, possession of certain drugs classified as barbiturates is a "wobbler" meaning that it may be charged as either a misdemeanor or a felony. If charged and sentenced as a misdemeanor, the punishment is a maximum of one year in county jail and/or probation, fines, and potential restitution.

DRUG SALES OR POSSESSION FOR SALE

(Health and Safety Code sections 11351 & 11352)

When a person if found to possess an illegal drug in an amount considered to be more than an amount for personal use and/or various items are also found, such as scales, packaging materials, and pay/owe sheets, the prosecution will almost always charge "possession for sale." This is true even when the amount of drugs found is small but evidence of sales is present or when a heavy user has more than the amount the prosecution deems an amount for "typical" personal use.

Possession of the same substances made illegal under Health and Safety Code section 11350 discussed above, become illegal as possession for sale under Health and Safety Code section 11351 when the prosecution alleges the evidence establishes that the drugs were possessed with the intent to sell them. Someone who purchases drugs that the prosecution alleges the purchaser intended to sell, will also be charged under this section.

The police have a tendency to always assume possession of all but the slightest amount is possession for sale. A good defense can expose this bias. Often the offender is simply a heavy user who needs help, not a prison sentence. A conviction under this section carries a fairly harsh sentence and is not eligible for a deferred entry of judgment (see discussion in previous section). However, an experience criminal defense attorney, who has a command of the facts, is often able to get this charge reduced to simple possession and a deferred entry sentence.

If someone is arrested for transporting the drugs for sale or for actually selling the drugs, as opposed to just possessing the drugs with an alleged intent to sell, the charges are more serious. Health and Safety Code section 11352 makes it illegal to transport, import, or furnish (whether sold, administered, or given away) the illegal substances discussed here, or offer to do any of these acts. Charges under section 11352 are serious and carry greater potential punishment than simple possession or possession with intent to sell. Even so, it is still possible for an experienced criminal defense attorney to argue for a reduction of these charges or negotiate for a plea to simple possession with a possibility of a deferred entry of judgment.

SENTENCING

Conviction under section 11351 is a felony punishable by imprisonment for two, three, or four years. A conviction under section 11352 is a felony carrying a sentence of imprisonment for three, four, or five years. The sentence is even greater (three, six, or nine years) if the transportation of drugs crossed two county lines, for example from Orange to Ventura County.

POSSESSION OR SALE OF METHAMPHETAMINE AND CERTAIN OTHER DRUGS

(Health and Safety Code sections 1377, 11378, and 11379)

These laws found under Health and Safety Code sections 11377, 11378, and 11379 are similar to the laws in sections 11350, 11351, and 11352 and regulate the same acts but only for specific drugs, called "restricted drugs" by the statute, the most common of which is methamphetamine. There is very little difference in substance between the statutes, except that unlike section 11350, which is most often charged as a felony (unless the drug is a certain class of barbiturates), section 11377 can be charged as a misdemeanor. As with violation of section 11350, a deferred entry of judgment is often available, which if successfully satisfied, will result in a dismissal of the charge.

Many of the drugs listed under Health and Safety Code sections 11350, 11351, and 11352 are also listed in sections11277, 11378, and 11379. In such a case, it is left to the prosecution to determine which code section should be charged.

SENTENCING

A violation of section 11377 is a "wobbler" meaning that it can be charged as either a misdemeanor or a felony. If charged and sentenced as a misdemeanor, the punishment is a maximum of one year in county jail and/or probation, fines, and potential restitution. If charged as a felony, the punishment is imprisonment for 16 months, two, or three years.

Prosecution for possession for sale under section 11378 or for sale or transport under section 11379 is a felony carrying the same punishment as that in sections 11351 and 11352.

MANUFACTURING DRUGS (Health and Safety Code section 11379.6)

The fascination with Breaking Bad aside, the charge of manufacturing drugs is a serious charge with the potential for a lengthy prison sentence. These are typically referred to as "lab" cases, because they involved the manufacturing of methamphetamines on a small or large scale, prosecuted under Health and Safety Code section 11379.6.

A conviction of this offense requires that the prosecution prove by its evidence that there is the ability to actually manufacture the drug and that there is an act in furtherance of the manufacture of the drug. Thus for example, if someone has all the ingredients but not all the equipment to manufacture a drug, he or she is not guilty of this crime, even if he or she indeed intended to manufacture the drug.

Mere preparation to manufacture is not enough; however, violation of this statute does not require that any illegal drug be actually manufactured. For example, if someone set up a lab that was fully functional and with the necessary ingredients present, but in which no drug had been made, it is still be a violation of this statute if the prosecution can establish that the evidence indicates the initial or intermediary stages of the process were completed. An example of this is when the evidence establishes that a precursor chemical, such as ephedrine, was manufactured but the process of manufacturing a controlled substance was not completed.

SENTENCING

Violation of this statute is a felony punishable by a hefty fine and three, five or seven years imprisonment in state prison. Under certain conditions, the sentence is enhanced. If the manufactured substance is in large quantities (as specifically defined in Health and Safety Code section 11379.8) the sentence, in addition and consecutive to, the base term can be another three, five, ten or fifteen years. Other sentencing enhancements apply when someone suffers great bodily injury or death as a result of the manufacture of drugs, when the manufacture is done in the presence of children, and/or when the offender has been previously convicted of certain drug offenses.

California Criminal Defense Lawyer Blog - Drug Offenses