In California, drug possession laws are primarily governed by Health and Safety Code § 11350 and § 11377, each covering specific controlled substances.
Section 11350 pertains to the possession of narcotics and other highly controlled substances (such as cocaine and heroin), while Section 11377 deals mainly with methamphetamine and Schedule III, IV, and V drugs.
HS 11350 vs. HS 11377
| Health & Safety Code § 11350 | Health & Safety Code § 11377 |
| Primarily narcotics and Schedule I/II drugs, including heroin, cocaine, certain opiates, and LSD. | Primarily methamphetamine, ketamine, and Schedule III/IV drugs, such as anabolic steroids and certain depressants. |
| Generally a misdemeanor for first offenses; repeat or severe cases may be treated as felonies. | Generally a misdemeanor for first offenses, with felony charges rare but possible for those with an extensive criminal history. |
| Up to 1 year in county jail and/or fines up to $1,000. | Up to 1 year in county jail and/or fines up to $1,000, similar to § 11350. |
| Eligible for programs like Deferred Entry of Judgment (DEJ), Proposition 36, and PC 1000, allowing treatment instead of jail time. | Also eligible for DEJ, Proposition 36, and PC 1000, offering similar alternatives to incarceration through treatment programs. |
| Likely to affect immigration status negatively, as possession of narcotics is considered a serious offense. | Generally less severe impact on immigration status, as substances are of lower classification; still, a case-by-case consideration applies. |
| Includes lack of knowledge, lack of possession, valid prescription, and unlawful search and seizure. | Similar defenses, including lack of possession, lack of knowledge, lawful possession, and lack of intent. |
| Possessing heroin or cocaine without a prescription or valid medical authorization. | Possessing methamphetamine or ketamine without legal authorization. |
Controlled Substance Possession – HS 11350 & HS 11377
Drug possession laws in California are strict, with Health & Safety Code § 11350 applying to narcotics and highly controlled substances and Health & Safety Code § 11377 dealing with substances considered less severe but still illegal to possess without authorization.
These sections differ primarily based on the type of controlled substances involved and their legal classifications.
- HS § 11350 pertains to Schedule I and II drugs like heroin, cocaine, and certain opiates. Due to the high addiction potential of these drugs, they carry more severe penalties and immigration impacts.
- HS § 11377 involves Schedule III, IV, and V substances, including methamphetamine and ketamine. These drugs are often less restricted than Schedule I/II substances but are still illegal to possess without authorization.
What Must the Government Prove for Drug Possession?
For a conviction under either § 11350 or § 11377, the prosecution must establish the following elements beyond a reasonable doubt:
- Possession: The defendant had actual or constructive control over the drug.
- Knowledge of Presence: The defendant was aware the drug was in their possession.
- Knowledge of Nature of Substance: The defendant knew that the substance was a controlled drug.
- Usable Quantity: The substance amount was sufficient for use, as mere residue typically does not constitute possession.
If any of these elements are not sufficiently proven, the case may be dismissed.
What Is the Punishment for Possessing a Controlled Substance?
In California, both § 11350 and § 11377 are generally treated as misdemeanor offenses under Proposition 47 for first-time offenders. However, penalties can increase based on criminal history or aggravating circumstances.
- Misdemeanor Penalty: For both sections, a first offense can result in up to 1 year in county jail, fines up to $1,000, or both.
- Felony Penalty: Repeat or severe cases may escalate to a felony, leading to harsher penalties such as time in state prison.
Deferred Entry of Judgment
California’s Deferred Entry of Judgment (DEJ) program offers first-time drug offenders the opportunity to complete court-approved treatment instead of facing criminal charges. Completion of the program results in case dismissal and prevents a conviction on the offender’s record. DEJ is available for both HS § 11350 and § 11377 cases, provided the defendant has no prior drug convictions or violent offenses.
California Proposition 36
Proposition 36 is a rehabilitative program for nonviolent drug offenders. Individuals charged under HS § 11350 or § 11377 may qualify for treatment instead of jail, with successful completion leading to case dismissal. Proposition 36 supports rehabilitation and reintegration by emphasizing recovery over incarceration.
What are Examples of a Controlled Substance?
The following substances are commonly cited under HS § 11350 and HS § 11377 in California:
- HS § 11350: Includes high-risk, highly addictive substances such as heroin, cocaine, LSD, MDMA, and certain opiates.
- HS § 11377: Covers substances with medicinal applications but subject to abuse, such as methamphetamine, ketamine, and anabolic steroids.
Possession of a Controlled Substance Expungement
Individuals convicted under HS § 11350 or § 11377 may be eligible for expungement, which can clear their criminal record after successful completion of probation or diversion programs. Expungement allows individuals to move forward without the limitations that a criminal record can impose.
What are the Defenses to Possession of a Controlled Substance?
Several defenses can be used to contest possession charges under HS § 11350 and § 11377:
Lack of Possession
If the defendant was not in actual or constructive possession of the drug, they may not be liable.
Lack of Knowledge: Presence
The defendant must have known the drug was present. If they were unaware, this can serve as a defense.
Lack of Knowledge: Character
The defendant may argue they did not know the substance was a controlled drug.
Substance Was Not a Narcotic Substance
The defendant can challenge that the substance is not illegal, potentially resulting in dismissal.
Not a Usable Amount
Possession must involve a usable amount of the substance. Insufficient quantities may nullify charges.
Valid Prescription
A valid prescription can serve as a defense if the drug was legally obtained.
Illegal Search and Seizure
Evidence obtained without a warrant or probable cause may be excluded, often leading to case dismissal.
Miranda Violation
If Miranda rights were not read, any evidence gathered during questioning may be inadmissible.
False Accusation(s)
If the defendant was falsely accused, they may present evidence to demonstrate innocence.
Mere Presence is Insufficient
Simply being near drugs is not enough for a conviction; possession requires control over the substance.
Factors That Differentiate Simple Possession from Possession with Intent
Possession with intent to distribute is a more severe charge than simple possession. Several factors can distinguish these two charges:
The Drug Amount
Possession of a large amount suggests intent to distribute rather than personal use.
Drug Packaging
Possession of packaging materials, such as plastic bags, may indicate intent to sell.
Absence/Presence of Drug Paraphernalia
Possession of paraphernalia suggests personal use, while its absence may imply intent to sell.
Penalties for Drug Possession with Intent to Distribute/Sell
Possession with intent to distribute or sell generally carries harsher penalties, often as a felony offense. These penalties may include:
- State Prison Time: Can range from 2 to 5 years, depending on the case specifics.
- Higher Fines: Usually much greater than those for simple possession.
Aggravating Factors
Certain factors can aggravate charges and lead to enhanced penalties for possession with intent to distribute:
- Proximity to Schools or Parks: Drug possession or sales near schools or parks is penalized more severely.
- Presence of Minors: Possession in the presence of minors may incur additional charges.
- Gang Affiliation: Association with gangs in relation to drug activity can lead to harsher charges.