Section 11350 of the California Health and Safety Code is a law that makes it unlawful to possess a variety of drugs. While the language of Section 11350 is somewhat complicated, once you understand the law, you will find that there are often many good defenses to this crime.

Many people are unaware that possession of a medically prescribed drug is illegal unless the prescription is available and current (Health & Safety Code §11350(a)(2)). The punishment for prescription drug possession could be just as severe as that for cocaine or methamphetamine.

The attorneys at Wallin & Klarich will use their knowledge of the law to provide you with the best possible drug crime defense. When you are accused of a violation of Health and Safety Code Section 11350, the judge has the power to grant you probation instead of sentencing you to jail. (Health and Safety Code §11350(d)). The judge also has the discretion to order community service instead of jail time (§11350(d)).

If you are arrested for possession of a controlled substance you may be charged with Health and Safety Code Sections 11350 or 11377 depending on what type of controlled substance you have.

Notably, while these charges usually concern “street drugs” like Cocaine and Methamphetamine they can also apply to substances commonly thought of as medications. If you are found in actual possession of the drug or “constructive” possession of the drug you may be found guilty of the offense.  Constructive possession means that the drug may not be on your person but you knowingly exercise control over or the right to control the drug, either directly or through another person or persons. In order for the prosecution to prove its case they must show that the person knew the substance was a controlled substance and that there was enough of the drug to constitute a usable amount. The elements of these offenses are as follows:

1. A person exercised control  over or the right to control an amount of the drug

2. That the person knew of its presence

3. That person knew of its nature as a controlled substance, and

4. The substance was in an amount sufficient to be used as a controlled substance.

Often times when the controlled substance is found under the seat of a vehicle the prosecutor will argue that the driver/owner of the vehicle must have known of the presence of the substance simply because they are the owner/driver of the vehicle and even though there were other people in the car. However, a skillful attorney can counter that argument by explaining to the court or the jury if necessary how easy it is for a passenger to stash a controlled substance under the seat of a vehicle without the driver/owner being aware.

The first thing every good criminal defense attorney should do in a case involving controlled substances is to look and see whether the way in which the police realized the Defendant possessed the substance was legal under the 4th amendment. This area of criminal law is called “search and seizure” and it is very important to consider this aspect of every controlled substance case. For example, if the substance was found on the Defendant while he was driving, was he/she legally stopped by the police officer? Did the stop occur because of a legitimate traffic infraction or was it because of the Defendant’s race? Or was the stop because the officer had a hunch since the Defendant seemed out place in that particular neighborhood? If the reason for the stop/detention of the Defendant was not legal under the fourth amendment then the attorney can move to suppress the evidence because of the 4th amendment violation under Penal Code Section 1538.5.  If the court grants this motion then the case can be DISMISSED. Thus it is very important for the attorney to explore this aspect of the case with the client.

Health and Safety Code Sections 11350 and 11377 can be filed as a misdemeanor or a felony. The maximum sentence as a misdemeanor is 1 year in a county jail while the maximum sentence for a felony is three years in state prison.

It should be noted that that for first time drug offenders with little or no criminal record they may be eligible for consideration under Penal Code  Section 1000 (also known as “PC 1000”).  This law permits first time drug possession offenders ( Defendants accused of sales are not eligible) to attend a 4 month drug class, avoid jail completely, then get the case  DISMISSED  with completion of the class and no arrests or convictions for 18 months. This is an ideal way for the first time offender to keep his/her record clean.