Possession for Sale – HS 11351
Possession for Sale – HS 11351 – the law
Possessing drugs or narcotics with the intent to sell them to others is illegal under the law, under California Health and Safety Code 11351 HS. Violating this law is defined as having possession of controlled substances or narcotic drugs that the individual intends on selling for profit.
Narcotics might include prescription drugs like Vicodin, Oxycontin, Codeine, or Morphine, or illegal drugs like methamphetamine, cocaine, heroin, LSD, or psilocybin mushrooms.
Possession for Sale – HS 11351 – the punishment
California Health and Safety Code 11351 HS sets this particular crime as a felony. And as a felony, the code section also sets the punishment – if you plead guilty, or are found guilty at trial, the judge has the option of only sentencing you to either two years in state prison, three years in state prison, or four years in state prison, and/or fines and fees that can reach up to $20,000.
For possession for sale cases, drug diversion, (PC 1000), or a Proposition 36 program, which are available in other types of drug cases, are not available, and are not an option.
However, for first time offenders, only if negotiated by a defense lawyer, you may able to negotiate for probation and up to a year in county jail.
Possession for Sale – HS 11351 – Proving a Possession of Narcotics Charge
The jury instructions for this code section, which would be communicated to a jury, if the case went to trial, show what needs to be proven for a possession of drugs case. There are six things are essential elements of the crime.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant unlawfully possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a controlled substance;
4. When the defendant possessed the controlled substance, (he/she) intended to sell it;
5. The controlled substance was <insert type of controlled substance>;
AND
6. The controlled substance was in a usable amount.
As you can see, the knowledge of the defendant is an essential issue. Unless there was a confession or an admission, the knowledge has to be made through circumstantial evidence – the indication from other testimony, or evidence, that there was knowledge of drugs, and an intent to sell the drugs.
If there are any of the following, that tends to show, in the eyes of the prosecutor, indications that the drugs were for sale, not for personal use:
- Scales;
- Baggies;
- A pay or sales log;
- A large amount of the drugs; or
- Messages to others regarding sales of the drug(s).
It also has to be proven, usually through lab testing, that the drugs were actually what they seem to be, and there must be a useable amount.
If they can prove all six elements, the person is considered guilty.
Possession for Sale – HS 11351 – Defenses to a Possession of Narcotics Charge
Attorneys use several different defenses for their clients who are charged with possession of narcotics – based on the client’s unique situation and the circumstances surrounding the case. Some of the most common defenses include:
Defense – Illegal Search and Seizure:
If the police have searched the accused individual’s car or home without a warrant, it could be grounds for a dismissal. It is important that the police have followed the proper protocol, and in order to search a vehicle or home without permission of the owner, the police need a search warrant signed by a judge. A search that exceeds the allowance of the warrant is also illegal, as are situations where excessive force is used to obtain the substances.
Defense – Lack of Possession
This defense is often used when two or more individuals were apprehended along with the drugs. The state must prove that the items were belonging to you, and if you’re with several other individuals, it could be very difficult for the state to prove that they belonged to you. If it can’t be proven, the charges against you could be dismissed.
Defense – Lack of Knowledge
This defense is also often used when there are more than one individuals apprehended. For instance, Jack’s friends pick him up at the corner of Main St. In the trunk of the car they’re driving are several bags of cocaine. Jack has no idea the cocaine is in the car, but two blocks later, the car is stopped by the police. Jack shouldn’t be convicted of this crime because he had no idea that the drugs were present in the vehicle when he entered it. This defense can result in the charges being dropped against Jack.
Defense – No Intent to Sell
An accused individual cannot be convicted of this particular crime if he or she had no intent to sell the drugs he or she was in possession of.They may have had the drugs, but intended to use them rather than sell them. The circumstances and other evidence found with the drugs will determine whether this defense will work. For instance, if a large amount of cocaine was found by itself, it may be for the individuals who have it. However,if it’s found with additional, smaller and empty bags, it could be said that the smaller bags were going to be used for distribution.
Contact an Attorney
Anyone who has been accused of possession of controlled substances with intent to sell needs to contact an attorney right away, so that attorney can get started with a strategy, and gathering proof of defenses, right away.
Contact us today if you need the help of a criminal defense attorney by calling (949) 682-5316, anytime.