Possession of Drugs for Sale – HS 11351
Possession of Drugs for Sale – Health and Safety Code 11351 HS makes it illegal to possess drugs or narcotics for purposes of selling them to others. This is sometimes just called “possession for sale”.
What does the Possession of Drugs for Sale – HS 11351 law state?
The law making possession of drugs illegal, Possession of Drugs for Sale – Health and Safety Code 11351 HS, states as follows:
“.Every person who possesses for sale or purchases for purposes of sale (1) any controlled substance … which is a narcotic drug, shall be punished by imprisonment … for two, three, or four years.”
Possession of Drugs for Sale – Health and Safety Code 11351 HS – Punishment
As you can see, in the law itself, the punishment is severe. If convicted of HS 11351, the judge at sentencing would only have the choice of sentencing you to one of the following:
- Two years in California State Prison;
- Three years in California State Prison; or
- Four years in California State Prison.
How does the judge decide? The guidelines they give judges suggest that to be neutral, the judge should pick the middle term, and then listen to the arguments from both the prosecution, regarding aggravating factors, and listen to the defense, regarding mitigating factors.
After weighing all the factors, the judge could increase from the middle choice of three years to sentence to four years, or could lower from the middle to two years of State Prison.
The law treats Possession of Drugs for Sale – Health and Safety Code 11351 HS much differently than possession for personal use. They want to treat drug dealers more harshly than what the law sees as drug dealers.
What has to exist to prove possession for sale?
Under the jury instruction for this crime, if the case ever went to trial, the prosecutor must prove, beyond a reasonable doubt, all of the elements below, beyond a reasonable doubt:
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>;
6. The controlled substance was in a usable amount.
What defenses are there?
As you can see by the above, there are some defenses naturally arising from the elements of the crime under Possession of Drugs for Sale – HS 11351. Those can be asserted by a criminal defense lawyer, as follows:
- The defendant did not actually “possess” the alleged substance;
- What the defendant possessed was not actually a controlled substance;
- The defendant did not know that the controlled substance was there;
- The defendant did not know that the item seized was a controlled substance;
- The defendant never intended to sell the illegal item;
- The substance that was intended to be sold is not a useable amount.
In addition to the above, Possession of Drugs for Sale – HS 11351charges also can be dismissed if there are search and seizure issues – the lack of a warrant, or a valid reason for the search, can be a big issue in possession cases.
The police can arrest for drugs for sale under California law based upon a search, or a warrant (including a signed arrest warrant or a warrant based upon an informant), or based upon either direct observation, or probable cause (which in turn is defined as a “reasonable suspicion that a crime has occurred or is occurring”).
How can a criminal defense attorney help?
Our Orange County criminal defense attorneys screen the facts for all legal defenses.
The catch all term “Drugs” includes many illegal narcotics, as well as prescription drugs. It also includes marijuana, which, unlike prescription narcotics, is now legal under California law to have in your possession as long as you are above 21. We also serve as Cannabis dispensary license lawyers, and marijuana licensing attorney. It is not legal to drive under the influence of marijuana, even though marijuana is legal.
California law certainly treats narcotics differently, including whether or not they are considered for sale, based upon what the narcotic is. Certain amounts of marijuana, for example, that may be considered a large quantity, might be treated as sufficient for personal use. With harder drugs the police are going to treat even smaller amounts as sufficient to meet a possession for sale charge.
The police look for, in a Health and Safety Code possession for sale charge, what is called in the law “indicia of sale”. Phone calls, messages, texts to various people, the use of scales or baggies to segregate quantities, use of a buy and sell log or diary, or explicit actions or language indicating sales are often used. The quantity is certainly important — when you are found to have a large amount of drugs on you, no matter the kind, there are significantly more legal issues that arise in trying to claim it is for personal use, and not for sale.
California has a specific crime for possession of drugs for sale. However, the crime itself also goes by several other common names:
- Possession of Drugs With Intent to Sell
- Possession of Drugs With Intent to Distribute
- Possession of Narcotics/Intent to Sell
It is important to note that you can be charged with Possession of Drugs for Sale – HS 11351 even if you intend to distribute them for no income, or give them away. Most jurisdictions do not see a difference because it is the intent – not the actual profit – that is criminalized.
Possession of Drugs for Sale – HS 11351 can be incredibly hard to fight, but it is not impossible. You need to have a good lawyer with an expertise in the area of drug law. This makes it significantly more likely that you will be able to reduce the charges or get rid of them completely. A private attorney might be able to show additional evidence, or argue, to convince the prosecution that the crime is possession, which is a crime subject to diversion under California Penal Code section 1000, and not Possession of Drugs for Sale – HS 11351.
Contact our firm now if you want to talk to us and have us defend Possession of Drugs for Sale – HS 11351 charges. We can help you.