If you are found in possession of certain drugs, you may face criminal charges. However, if you are found in possession of larger quantities of drugs, packaged drugs to sell, or other signs that the drugs are intended for distribution, you may face higher penalties, including felony drug charges.
The penalties for possession with intent to sell depend on a number of factors, including the amount of drugs in your possession, type of substance, criminal history, and whether any other criminal activity may have been taking place. Possession of a controlled substance with intent to sell is not limited to illegal narcotics, it can also include pharmaceutical drugs.
Intent to Sell
The prosecutor does not have to prove that you were actually selling drugs, trying to sell them, or had already sold the drugs. Instead, they can use evidence gathered to show signs of drug sales. This includes:
- Larger quantities of drugs than intended for personal use,
- Multiple packages of drugs,
- Packing materials such as baggies,
- Measuring equipment,
- Other materials to cut with the drugs,
- Small denominations of cash,
- Possession of guns,
- Frequent visitors to a location, or
- Evidence of an actual sale.
The police may also use undercover officers or informants to provide information to show that drug sales were taking place. This includes having an undercover officer go to an individual and buy drugs, which may be videotaped for evidence. Informants may provide information that a location is used to sell drugs, or they bought drugs from a certain individual. The police may then use this information to obtain a search warrant to search an individual or location for evidence of drugs.
California Health and Safety Code 11351
Possession of a controlled substance for purpose of sale is a violation of California Health and Safety Code 11350. Every person who possesses for sale or purchases for purposes of sale any controlled substance specified under the law, or any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment for two, three, or four years.
Controlled Substances Act
Controlled substances in the U.S. are classified by the federal government. 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 with Intent to Sell in California
Penalties for drug possession depend on the quantity of the controlled substance involved, criminal history, and whether any other criminal activity was taking place. Possession with intent to sell is a felony. Penalties can include 2, 3, or 4 years in prison, and a fine of up to $20,000. Multiple drug sales could result in multiple drug charges which could increase the criminal penalties.
In addition to the underlying drug possession charges, additional criminal charges may apply, depending on the situation. This includes charges of conspiracy, gang-related criminal charges, drug manufacture, weapons charges, and even criminal charges if someone dies as a result of a drug overdose.
Unlike simple possession charges, possession with intent to sell may not be eligible for a diversion program. Even after release from prison, the conditions of parole may require an individual to check in with their parole officer, avoid contact with certain individuals, require drug testing, and submit to random searches. A felony conviction may also impact your rights to own a gun and make it more difficult to find a job.
Penalties for Selling Marijuana
California has been legalized for recreational use after Prop 64. However, it is still highly regulated. Even if it is legal to possess marijuana for personal use, possession of marijuana for sale is a criminal offense. Under California Health and Safety Code 11359, possession with intent to sell marijuana may be a misdemeanor criminal offense, resulting in up to 6 months in jail and a fine of up to $500.
Defenses to Drug Possession Charges
There are a number of possible defenses to drug possession with intent to sell charges. This includes challenging the amount of drugs found by police and the connection between any cash, frequent visitors, or evidence of packaging to any drugs found. In some cases, the amount of drugs found may be within the limit for simple drug possession, a much lower offense.
Other drug possession cases involve questions over police misconduct, including unlawful search and seizure. If the police do not have probable cause to arrest an individual and do not have consent to a search, they may be violating an individual's constitutional rights by searching without cause. Under the U.S. Constitution, every person has the right to be free from unreasonable search and seizure. If the police violate your rights, the evidence gathered against you may be suppressed in court.
Attorney for East Bay Drug Charges
Lynn Gorelick has more than 30 years of criminal defense experience defending her clients from drug possession and drug sales 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.