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Possession of a Controlled Substance

If you are caught in possession of illegal drugs, you may be facing criminal charges. The charges and penalties depend on a number of factors, including the amount of drugs in your possession, type of substance, criminal history, and whether the drugs were intended to be sold to others. Possession of a controlled substance does not only involve illegal narcotics, it can also include pharmaceutical drugs if they are not accompanied by a valid prescription.

Possession can be demonstrated by actual possession or constructive possession. If the police search you and find a bag of illegal pills in your pocket, you may be considered to have actual possession of a controlled substance. If the police pull you over and later find drugs in the trunk of your car, you may be considered to be in constructive possession because you were in control of the items in your vehicle.

Possession of a controlled substance without a prescription is a violation of California Health and Safety Code 11350. Every person who possesses any controlled substance or narcotic drug without a valid prescription may be charged with drug possession and could face imprisonment and fines California law. If you have been arrested for possession of a controlled substance, contact an experienced East Bay criminal defense attorney.

Controlled Substances Act

Controlled substances are classified by the federal government by schedule. Under the U.S. Controlled Substances Act (CSA), drugs are categorized based on their medical uses, the potential for abuse, and safety level. However, many have criticized how specific drugs are categorized under this system. Marijuana, although legal in a handful of states, including California, is still classified as Schedule I--the same classification as heroin.

There are 5 schedules of controlled substances under the CSA. Schedule I are generally considered more dangerous, with Schedule V substances considered the least dangerous.

  • Schedule I drugs are considered to have no valid medical purpose with a high potential for abuse. This includes MDMA, mescaline, GHB, LSD, and marijuana.
  • Schedule II drugs are considered to have a high potential for abuse as well as a currently accepted medical value. This includes Percocet, fentanyl, morphine, methamphetamines, and OxyContin.
  • Schedule III drugs are considered to have a currently accepted medical use with some potential for abuse but are considered safer than Schedule I or II drugs. These include commonly prescribed steroids, antidepressants, and appetite suppressants.
  • Schedule IV and V drugs are considered to have a lower potential for abuse than the other schedule drugs. These include a number of common prescription drugs, like Xanax, Valium, Ambien, Ativan, and prescription cough medicine.

Penalties for Drug Possession in California

Penalties for drug possession depend on the quantity of the controlled substance involved. Small amounts of a controlled substance may be seen as possession for personal use. However, possession of larger amounts of a controlled substance may be charged as possession with the intent to distribute. The larger the quantity of drugs, the greater the penalties may be.

Every person who possesses any controlled substance shall be punished by imprisonment for up to 1 year in prison. If the court grants probation, the penalties could include a fine of up to $1,000 for a first offense and $2,000 for a second offense. A judge may also require community service in lieu of the fine.

Possession of Marijuana

The treatment of marijuana has changed dramatically over the years. California was the first state to legalize marijuana for medical use. With the passage of Proposition 64, California joined a handful of other states that legalized marijuana for recreational use. However, possession of marijuana is still regulated by California Health and Safety Code 11357.

Possession of not more than 28.5 grams of marijuana by persons under the age of 18 is punishable by an infraction. Those found guilty may be required to complete community service hours and drug education or counseling sessions. Possession by individuals age 18 to less than 21 includes a fine. Possession of marijuana on school grounds can result in additional charges. Possession of more than 28.5 grams can result in up to 6 months in jail and a fine of up to $500.

Diversion Programs

In some cases, a first-offender may be able to take advantage of a diversion program to avoid a criminal record. A Deferred Entry of Judgment program allows first-time drug offenders to avoid prosecution if they complete a drug rehabilitation program. Upon successful completion of the program requirements, a judge may dismiss the possession charges. Other low-level offender programs may allow an individual to complete probation through an alternative drug penalty program instead of going to jail. Talk to your attorney about whether you may be eligible for a diversion program to avoid jail time.

Defenses to Drug Possession Charges

There are a number of possible defenses to drug possession charges. It is a violation of the law if the person in possession of the controlled substance had the express authorization of the prescription holder or was delivering the controlled substance to the prescription holder.

Many drug possession cases involve questions over the police officers' search and seizure of property. If the police do not have the probable cause to arrest someone, do not have consent to a search, or do not have a valid search warrant, they may be violating an individual's constitutional rights. Every person has the right to be free from unreasonable search and seizure. If the police violate your rights, you may be able to have any ill-gotten evidence thrown out of court.

Federal Drug Charges

If a controlled substance is transported across state lines, across the border, or through an airport, this may be a violation of federal drug law. Even though California, Oregon, and Washington have legalized recreational marijuana, traveling between these states with drugs may invoke federal law. Federal law still considers marijuana to be a Schedule I drug, with serious penalties and possible jail time.

East Bay Drug Possession Attorney

Lynn Gorelick has more than 30 years of criminal defense experience defending her clients from drug possession charges. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and maintaining a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa or Alameda Counties, contact Lynn Gorelick understands you do not have to plead guilty just because you were arrested.

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We offer a free initial consultation to people accused of DUI and criminal offenses in the Bay Area. Call us at 510-785-1444 to schedule yours.

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