There are several reasons why you may be having large amounts of controlled substances. Not all individuals who possess controlled substances usually have the intention to sell them. Some may not even have been aware of the fact that they were in possession of the substances.
It does not mean that you will end up in prison just because you have been charged with possession for sale in San Jose. Sometimes, the law enforcement officers may threaten you by telling you that they have overwhelming evidence against you; and even force you to confess. Also, the Prosecution Department of California can attempt to convince you that there is no way to resolve your case but to take a guilty plea.
As a defendant, you have the right to a fair hearing and to fight off any drug possession charges. At the San Jose Criminal Attorney Law Firm, we can assist you in avoiding a jail sentence and prevent a drug possession conviction from tarnishing your record.
The Legal Definition of Possession of a Controlled Substance for Sale
The criminal offense of possession of a controlled substance for sale is enlisted in California Health and Safety Code 11351. This law prohibits the sale and distribution of controlled substances, including narcotics. You will be charged for violating this law if you possess or purchase narcotic drugs or controlled substances with an intention to procure them for sale.
The United States Controlled Substances Act defines 'a controlled substance' as a chemical or drug whose use, possession, and manufacture is under the control of the Federal government. This law lists some examples of controlled substances. They include:
- Opiates and its derivatives
- Hallucinogenic substances
- Cocaine
- Gamma-hydroxybutyric acid (GHB)
- Peyote
- Heroine
Moreover, the United States Controlled Substances Act prohibits individuals from purchasing or possessing certain prescription medication for sale. Some examples of medical drugs that are considered controlled substances by this act include hydrocodone and codeine.
What the Prosecution Must Prove for you to be Convicted of the Offense of Possession of a Controlled Substance for Sale
For the court to convict you of the offense of possession of a controlled substance for sale, the prosecution must prove various elements. These elements include:
- You possessed the drug
- You knew you were in possession of the drug
- You knew that the drug was a controlled substance
- You possessed sufficient amounts of controlled substances to sell or use
- You were in possession of the drug with either an intention to procure it for sale or to resell it
Here is a detailed discussion of these elements:
1. Possession
You have the power to exercise control over any item that you possess. This is why the term 'possession' is equated to control under the laws of California. California laws categorize this control into three types: joint, actual, or constructive.
Actual Possession
This is the easiest type of control to identify and define. Actual possession is also referred to as physical possession. You will be deemed to have actually possessed a controlled substance if the investigating law enforcement officer found it inside your car, briefcase, and pocket, among others.
Constructive Possession
It can be challenging to identify constructive possession. The court will hold you to have had constructive possession of a controlled substance if you had to access it and exercised control over it, even if you were not in physical possession of it.
Typically, California prosecutors prove constructive control using circumstantial evidence. This evidence does not point directly to you, but the court can use it to evaluate whether you are guilty.
Joint Possession
More than two people can possess a narcotic drug or controlled substance. In such a scenario, you will be deemed to have had joint possession.
2. Knowledge
As we asserted earlier, the prosecutor must show the court that you had knowledge of the fact that you were in possession of the drug, and it was a controlled substance. Let’s illustrate these two elements.
Knowledge of Possession of the Drug
It is unfair to hold an individual liable for possession of a controlled substance for sale if he did not know that he was in possession of the drugs. For instance, maybe you had borrowed a car from a friend, and the police discovered controlled substances inside the car's trunk. In such a case, the court will not hold you criminally responsible if you did not know that some drugs were stored inside the car's trunk.
The Knowledge that the Drug is a Controlled Substance
For the court to convict you of possession of a controlled substance for sale, you don't need to know the drug's exact name, chemical composition, and the effects of the drug. What the court considers for a conviction to be sustained is if you knew that the drugs were illegal.
The jury may infer that you knew that the drug was a controlled substance simply because you possessed it. They can also evaluate your conduct during the investigation process to ascertain whether you knew that it was unlawful to possess drugs for sale.
3. Sufficient Drug Amounts to Sell or Use
Drug residues or useless traces cannot make you become convicted of the criminal offense of possession of a controlled substance for sale. The prosecutor must demonstrate that the drug’s quantity was enough for consumption by the individuals to whom the drugs were to be sold. However, it isn’t a requirement for the prosecution to prove that the amount of drugs was sufficient to affect the users.
4. Intention to Sell
This is the most crucial element to prove the prosecution’s case. The prosecutor must show that you had an intent to sell the controlled substances so that the court can hold you criminally liable.
It isn’t necessary for the prosecutor to show that you intended to sell the controlled substances personally. You will still be held criminally liable if you had an intention to give the drugs to another person to sell on your behalf.
Sometimes, the prosecution may successfully prove that you were in possession of the drugs, and you knew that they were controlled substances; but fail to demonstrate how you had an intention to sell them. In such a scenario, your criminal defense attorney may enter into a plea bargaining agreement with the prosecutor for you to have a reduced charge of personal possession of a controlled substance under California's Health and Safety Code 11350.
It is critical for the court to distinguish between possession for use and possession for sale. This is because the offense of possession for use has less harsh penalties. Also, it is easier for you to avoid jail time if you have been convicted of possession for use when compared to possession for sale. For instance, your attorney can convince the court to enroll you in a rehabilitation program; instead of sentencing you to jail.
Possession for Use vs. Possession for Sale
Both of these offenses do not involve the actual transfer or sale of narcotics. Instead, they involve the intent of the possessor.
It is challenging for the prosecutor to prove intent in a case of possession of a controlled substance for sale, especially if you have an attorney to defend you. This is why law enforcement officers usually devise all means to make you confess committing the crime.
Often, the prosecution will rely on circumstantial evidence to prove intent. Your defense attorney can easily challenge this evidence since it does not point directly to you.
Apart from circumstantial evidence, the prosecutor may adduce the presence of several factors to establish the fact that you had an intention to sell. They may summon various expert witnesses, such as narcotic officers, to illustrate that the defendant planned to sell the controlled substances. These factors also distinguish the two offenses: possession for sale and possession for use. They include:
1. The Amount of Controlled Substances
The prosecutor may assume that you had an intent to sell if the drug quantity was more than what one individual would consume. However, this argument is flawed because most habitual drug users ‘stock up' their favorite narcotics, especially if they have the financial means. Unless you run a warehouse, it will still be hard for the prosecution to prove you had an intention to sell the drugs.
2. The Drug Packaging
Often, how the drug is packaged can significantly contribute to the outcome of your case. If the police find the drugs packaged in separate bindles, baggies, bundles, balloons, or any other type of packaging common in drug sales, they will ascertain that the controlled substances were possessed for sale. Similarly, if they find you with plenty of packaging material, they may be convinced that you had an intention to sell.
3. Drug Paraphernalia
Possessing drug paraphernalia is an offense, according to California’s Health and Safety Code 11364. The absence or presence of drug paraphernalia can either hurt or help your case, depending on your situation.
Some examples of drug paraphernalia include syringes, pipes, and any other material used in the consumption of the drug. Typically, such paraphernalia indicates use; and its presence may help you if you intend to accept a plea bargaining agreement of a reduced charge. However, if you were caught in possession of measuring instruments, weighing scales, or any other tool used to package, dilute, or separate drugs, this physical evidence will strengthen the prosecution's claim that you had an intent to sell.
4. Intoxication
When you are arrested while intoxicated, you can argue that you intended to use the drugs rather than selling them. However, the court may not accept this argument because most drug peddlers are also addicts.
Furthermore, you may face an additional charge of 'being under the influence of a controlled substance' under California's Health and Safety Code 11550. This offense is a misdemeanor, and you may face some jail time upon conviction.
Legal Defenses to Possession of a Controlled Substance for Sale
Your attorney can use various legal defenses to help you fight your possession of sale charges. Here, we’ve listed for you the most common legal defenses to possession of a controlled substance for sale. Not all of them can apply to your case, and your attorney will only use them if they fit your situation.
1. Illegal Seizure and Search
There are various ways that law enforcement officers can violate the seizure and search laws of California. For instance, the police may conduct a search without a warrant, carry out a search that is outside the warrant’s scope, and detain you illegally.
If your attorney believes that the police violated some search and seizure laws during arrest and investigation, he will request a suppression hearing under Penal Code 1538.5 PC. The primary purpose of the suppression hearing is to exclude all the evidence that the police obtained from the illegal search and seizure. This way, the prosecution will have insufficient evidence, and probably, your case will be dismissed, or you will have your charges reduced.
2. No Intention to Sell
Just because you were in possession of a controlled substance, it does not mean that you had an intention to sell it. You can assert that you owned the narcotics for personal use.
If you opt for this defense, you may be charged with possession for use, and your initial charge of possession for sale will be dropped. As we highlighted earlier, possession for use has less severe penalties; and you can even find a way to avoid jail time upon conviction.
This defense will be the perfect fit for you if there is overwhelming evidence against you that you possessed the drugs. It can also work if you convince the court that even if the drugs were in your possession, you intended to dispose of them instead of procuring them for sale.
3. Lack of Knowledge
The court will not convict you of possession for sale if the prosecutor is unable to prove that you knew that you were in possession of the drug or you knew that the drug was a controlled substance. For instance, your attorney may assert that you believed that the cocaine that the police found packaged in a baggie was just sugar.
Lack of knowledge is probably the best defense you can use if you have no prior record of being involved in drugs. All you need to do is to act innocent and ignorant, and the jury will be convinced that you had no idea that you owned a controlled substance. Obviously, this defense will not work best for a known drug dealer or user.
4. Lack of Possession
Your attorney can manage to convince the court that you were not even in possession of the controlled substance. If he succeeds, you will obtain an acquittal. This defense is mostly utilized in cases where the prosecutor alleges constructive possession.
Sentencing, Punishment, and Penalties for Possession of a Controlled Substance for Sale
In California, the criminal offense of possession of a controlled substance for sale is classified as a felony. Its penalties include:
- Probation and a county jail term of a maximum of one year
- A county jail term of two, three, or four years
- A fine that may be up to $20,000
In some instances, the prosecutor may prove that you had an intention to participate in multiple drug sales. In such instances, the court will impose penalties on every intended sale. Also, convicts of drug crimes who are immigrants or aliens may face deportation.
Aggravating Factors
If the court convicts you of possessing cocaine base for sale, you may face a county jail term of two, three, or four years and also be required to pay a fine that may be up to $20,000. Additionally, a conviction of possession of cocaine base, cocaine or heroin for sale may make you face an additional jail term of:
- three years if the weight of the controlled substance is over one kilogram
- five years if its weight is more than four kilograms
- ten years if the substance’s weight exceeds ten kilograms
- fifteen years if the weight of the drug is over 20 kilograms
- twenty years if the controlled substance weighs more than 40 kilograms
- twenty-five years if the weight of the substance is over 80 kilograms
Each time you receive an additional jail term because of the weight enhancements, your fine may also be increased to up to $8 million. Furthermore, if you have a prior drug crime conviction on your record, you may face an additional and consecutive jail term of three years for each past conviction.
Drug Diversion
California law permits individuals who have committed non-violent drug crimes to participate in rehabilitation programs instead of serving a term in jail or state prison. One of the most important benefits of the drug diversion program is that when you complete it successfully, the court will dismiss your charges.
However, this program is not available to everyone; and it has various limitations. For instance, individuals who have been charged with offenses involving the sale of controlled substances are not permitted to participate in this program. If you had entered into a plea bargaining agreement with the prosecution to reduce your possession for sale charge to possession for use, the court might allow you to enroll for this program.
Because an individual cannot possess a drug for sale when he does not have it, the court deems simple possession as a 'lesser included offense' of the California Health and Safety Code 11351. Therefore, the prosecutor may still charge you with the offense of possession for sale; but the court may convict you of simple possession instead. If the court opts for this alternative lesser included offense, you may receive permission to enroll for a drug diversion program.
Related Offenses to Possession of a Controlled Substance for Sale
Various crimes are related to the California Health and Safety Code 11351. Some of them may be charged together with the offense of possession for sale, while others may be charged instead of it. Some examples include:
1. Transportation and Sale of a Controlled Substance
The distinction between this offense and possession for sale is that this one involves real drug transactions. Its punishment is a county jail sentence of three, four, or five years. This jail term might be lengthened to three, six, or nine years if you transported controlled substances to more than two counties.
2. Transportation, Possession, and Sale of Methamphetamines
Activities involving transportation, possession, and sale of methamphetamines are prohibited in California under Health and Safety Codes 11350, 11351, and 11352. Some examples of methamphetamines include GHB, ketamine, PCP, ecstasy, and anabolic steroids. Most of these drugs are regulated by more than one law, and the prosecutor can choose which charge to file; based on the law that you have violated.
3. Possession of Marijuana for Sale
According to the California Health and Safety Code 11359, it is unlawful to possess marijuana with intent to procure it for sale. The punishment for this offense is a county jail term of 16 months, two, or three years or a fine that may be up to $10,000.
4. Manufacture, Sale, or Possession for Sale of an Imitation Controlled Substance
As per California Health and Safety Codes 11355 and 109575, it is unlawful for an individual to sell fake controlled substances. A fake controlled substance can be defined as one in which a person cannot easily distinguish it from a genuine drug by analyzing outward appearances.
This offense is taken very seriously by the State Government of California because it can bring about more potential harm to the public. For instance, addicts of fake drugs may discover the real drugs and use them to increase dosage levels.
Find a San Jose Criminal Attorney Near Me
If you or your loved one is facing charges of possession for sale in San Jose, you can reach out to the San Jose Criminal Attorney Law Firm for help. We promise to support you throughout until your case is concluded. We offer free consultations as well. Call us today at 408-622-0204.
