Drug Crimes

Drug crimes in California come in a wide variety, ranging from minor infractions to serious felonies. Depending on the activity involved, the substance, and the amount, a drug crime could be punishable only by a small fine or by a long prison sentence. When faced with charges of any drug-related offense, it is important that you have a skilled and experienced attorney to guide you through the legal process, dispute the charges, and help you to achieve the best outcome possible. The skilled attorneys at McDowell Defense have years of experience helping clients charged with drug crimes to achieve the best possible results. If you have been charged with a drug-related crime, call McDowell Defense for a free consultation at (213) 401-2322.

Below is a breakdown of the commonly charged drug crimes in California.

Common Illegal Substances

Cannabis (Marijuana)
Cocaine/Crack
Heroin/Other Opiates
Amphetamines
Methamphetamine
LSD (Acid)
Psilocybin (Mushrooms)
MDMA (Ecstasy/Molly)
PCP/Angel Dust
Ketamine
Peyote
Prescription Drugs

While it is illegal to possess any of these substances in the state of California, it is also illegal to possess the compounds used to manufacture these substances.

Crimes Commonly Charged in Relation to These Illegal Substances

Marijuana

Despite the fact that marijuana has legitimate and proven medical benefits, it is still a crime under California law to possess, sell, or cultivate it. Proposition 215 provides some exceptions, but only in limited circumstances. If you have been charged with a marijuana crime, it is very important to have a skilled and experienced attorney represent you. If you are convicted of a marijuana crime, the court may order you to pay fines and serve time in jail, and you will have a criminal record that could affect future employment and other important matters.

The attorneys at McDowell Defense have years of marijuana defense experience. If you have been charged with a marijuana-related offense, our attorneys can help you understand the charges brought against you, guide you through the legal process, and help you to achieve the best possible outcome for your case. Call for right away for a free consultation at (213) 401-2322.

What is considered “marijuana”?
California Health & Safety Code section 11018 (HS 11018) defines “marijuana” as any piece of the cannabis plant as well as its seeds. Possession, cultivation, and sales of any mixtures, resins, cakes, salts, or any other compositions of marijuana is a chargeable offense.

Possession
In order to convict a defendant of marijuana possession, the prosecution must prove that the defendant:

Had marijuana in his/her possession
Knew the marijuana was in his/her possession
Knew the substance possessed was marijuana

Possible Penalties for Simple Possession of Marijuana
One ounce or less – Infraction; $100 fine
Larger amounts – Misdemeanor; Up to six month jail sentence, $500 fine
Concentrated Cannabis, any amount – Up to one year in jail, $500 fine
Adult on school grounds, less than one oz. – Up to 10 days jail, $500 fine
Minor on school grounds, less than one oz. –
1st offense: Fine up to $250
Subsequent Offenses: Fine up to $500, Commitment to juvenile facility for up to ten days

Sales/Possession for Sale/Transportation
Under California Health & Safety Code section 11359 (HS 11359), sale of marijuana is a felony, even if only a small amount. To charge a defendant with possession for sales, the prosecution may offer as evidence the amount possessed, equipment, weapons, cash, phone communications, and any other circumstantial factors that indicate the marijuana was to be sold.

Sale, transportation, or distribution of marijuana in California
California Health & Safety Code section 11360 (HS 11360) classifies the sale, transportation, or distribution of marijuana in California a felony. Penalties for the sale of marijuana in California may include up to 2, 3, or 4 years in California State Prison.

However, if the amount sold, transported, or distributed is less than one ounce, the attorneys at McDowell Defense can help get the charge can be reduced to an infraction, punishable only by a fine of $100.

Possession of Marijuana for sale in California may carry penalties of:
Up to $10,000 in fines
Up to 3 years in California State Prison

Cultivation of Marijuana
Cultivation of marijuana is a felony in California. If, however, the defense attorney can prove that the defendant cultivated the marijuana for personal use only, the defendant may qualify for drug diversion under PC 1000 and serve no jail/prison time and ultimately have no felony conviction on his/her record.

Common Legal Defenses for Marijuana Crimes
Illegal search and seizure
Undependable witness
Privacy and Rights of Defendant infringed

Medical Marijuana: The Compassionate Use Act of 1996
Proposition 215 allows patients under medical care and their primary caregivers to possess and cultivate marijuana. The patient or caregiver must have a physician’s written approval or a county-issued marijuana health card (which is safer). The pot, however, may not be distributed or sold.

Common conditions for which medical marijuana may be approved include:
AIDS
Anorexia
Cachexia
Cancer
Chronic pain
Glaucoma
Muscle spasms
Seizures
Nausea

In addition to helping defending your marijuana charges, the attorneys at McDowell Defense can help you to:

Obtain County Medical Marijuana Health Cards (Cannabis Cards)
Protect your rights as a California marijuana user
Locate Primary Caregivers who use pot to treat appropriate medical conditions
Recover medical marijuana that police illegally seized
Open and maintain Cannabis Clubs, cooperatives, and marijuana dispenseries
Deal with the FBI, DEA, and other federal authorities

Other Controlled Substances

California leads the U.S. in drug prosecutions. With the complexity of the drug laws, the severity of the charges and penalties associated with them, and with the District Attorney’s determination to obtain a conviction, you should not take on a drug-related criminal charge alone. The attorneys at McDowell Defense are skilled and experienced in defending against drug charges and helping clients achieve the best results possible. If you or a loved one has been charged with a drug-related offense, call us immediately for a free consultation at (213) 401-2322.

Understanding the Drug Laws and Charges

Under California law, possession, sales, transportation, manufacturing, trafficking, and distribution of narcotics and other controlled substances or drug paraphernalia related to these substances are treated differently than marijuana, and are often charged as felony offenses. Some of the most common drug-related charges and their controlling statutes are:

Possession of Drug Paraphernalia – Health & Safety Code section 11364

Possession of a Controlled Substance – Health & Safety Code section 11350(a)

Possession for Sale of a Controlled Substance – Health & Safety Code section 11352(a)

Sale or Transportation of a Controlled Substance – Health & Safety Code section 11352(b)

Sale or Furnishing of a Controlled Substance to a Minor – Health & Safety Code section 11353

Selling a Substance in Lieu of a Controlled Substance

Drug crimes in California also may include money laundering.

Possession of Drug Paraphernalia – Health & Safety Code section 11364

Under Health & Safety Code section 11364 (HS 11364), it is a misdemeanor to possess drug paraphernalia. HS 11364 defines drug paraphernalia as “an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance.” Note that HS 11364 does not cover scales, blenders, bowls, spoons, capsules, balloons, or other containers for drugs; these items are considered more serious and are covered under “drug possession for sale” or “sale or transportation” laws.

Penalties:

A person convicted of possession of drug paraphernalia in California under HS 11364 may face up to 6 months in county jail and a fine of $1,000.

Elements:

In order to convict a defendant of paraphernalia possession, the prosecution must prove all of the following beyond a reasonable doubt:

The defendant exercised control, or had the right to control, drug paraphernalia.
The defendant knew of the paraphernalia’s presence.
The defendant knew it was drug paraphernalia.

Possession of a Controlled Substance – Health & Safety Code section 11350

Under Health & Safety Code section 11350 (HS 11350), it is a felony to possess a controlled substance, such as cocaine, ecstasy, heroin, methamphatimine, LSD, PCP, ketamine, and even prescription drugs such as Vicodin or Oxycontin, without a valid prescription.

A person convicted of possession under HS 11350 may face up to three years in prison. Most people, however, are eligible for drug diversion under PC 1000 or Prop. 36.

Penalties:

Possession of a controlled substance under HS 11350 is typically charged as a felony. Penalties faced after a conviction include:

Probation and up to a year in county jail OR
16 months, 2 years, or 3 years in State Prison

Elements:

In order to convict a defendant for possession of a controlled substance, the prosecution must prove, beyond a reasonable doubt, all of the following:

The defendant exercised control over the drug
The defendant knew of the drug’s presence
The defendant knew the substance was a controlled substance
The substance possessed actually was a controlled substance
The amount of the substance was a usable amount

Drug Diversion – PC 1000, Prop. 36, and California Drug Court
California law allows some people charged with possession under HS 11350 to enter drug diversion instead of serving a sentence in jail or prison.

Possession for Sale of Narcotics – Health & Safety Code section 11351

Under Health & Safety Code section 11351, it is a felony to possess a controlled substance for the purpose of selling it. This felony is more serious than simple possession, and those convicted of this crime do not qualify for diversion under PC 1000 or Prop. 36.

In determining whether to charge someone with possession for the purpose of sale, police and prosecutors look to factors such as:

Amount of the drugs
Packaging of the drugs
Equipment (scales, etc.)
Weapons
Large amounts of cash

Based on these factors, a lot of innocent people end up charged with possession of drugs for sale when in fact they only possessed the drugs for personal use.

Often times, police will rely on faulty information or dishonesty to obtain search warrants. The attorneys at McDowell Defense will examine any search warrant in great detail to determine the source of the information. If the cops searched under a faulty warrant improperly obtained, we can likely get all items seized suppressed, and possibly the whole case dismissed.

Penalties:

Possible penalties resulting from a conviction under HS 11351 possession for sale include:

Probation and up to 1 year in county jail, OR
2, 3, or 4 years in California state prison and a maximum fine of $20,000

If the prosecution can prove that you intended to engage in multiple sales, these penalties may be imposed in connection with each intended sale.

Additionally, a conviction of possession for sales under HS 11351 may lead to the deportation of legal immigrants or legal aliens convicted under the section.

Aggravating Factors that Increase Sentence:

If the controlled substance you possessed for sale was cocaine base, you face 3, 4, or 5 years in prison and maximum fine of $20,000

If the substance is heroin, cocaine base, or cocaine, you face an additional:

3 years in prison if more than 1 kilogram
5 years in prison if more than 4 kilograms
10 years in prison if more than 20 kilograms
20 years in prison if more than 40 kilograms
25 years if more than 80 kilograms
PLUS fines up to $8,000,000

Prior Felony Drug Conviction:

A defendant charged with possession for sale will also face an additional and consecutive 3-year term in state prison for any prior drug felony convictions in California.

Sale or Transportation of a Controlled Substance – Health & Safety Code section 11352

Under Health & Safety Code section 11352 (HS 11352), it is a felony to sell, furnish (supply), administer (causing person to ingest, inhale, or otherwise consume the drug), give away, transport (any distance, by any means), or import into California (bring into the state) a controlled substance. Just like possession for sale, no drug diversion program is available to avoid a conviction.

Elements:

In order to convict a defendant under HS 11352, the prosecution must prove all of the following:

The defendant engaged in, or offered to perform, at least one of the acts listed above.
The defendant knew of the drug’s presence.
The defendant knew of the drug’s nature as a controlled substance.
There was a usable amount of the drug present.

Penalties:

This is the most serious of the drug felonies, and the possible penalties include:

Probation with up to a year in county jail OR
3, 4, or 5 years in state prison OR
3, 6, or 9 years in state prison if you transport the drugs across more than two county lines

Aggravating Factors that Increase Sentence:

There are several factors that, if the prosecution proves true, worsen a sentence for sale or transportation under HS 11352.

Drug Trafficking in Certain Locations – Health & Safety Code section 11380.7

If convicted under HS 11352 and the substance was heroin, cocaine, or cocaine base and the illegal activity took place upon the grounds of or within 1,000 feet of a drug treatment center, “detox” facility, or homeless shelter, you will face an additional 1 year in state prison.

Mass Sales Involving Specific Drugs – Health & Safety Code section 11370.4

Just like possession for sale of a controlled substance, a conviction for sale or transportation of a controlled substance carries an increased penalty for certain amounts of certain substances. However, the numbers for amount and increased time in prison are different.

If the substance is heroin, cocaine base, or cocaine, you face an additional:

3 years in prison if more than 1 kilogram
5 years in prison if more than 4 kilograms
10 years in prison if more than 10 kilograms
15 years in prison if more than 20 kilograms
20 years if more than 40 kilograms
25 years if more than 80 kilograms
PLUS fines up to $8,000,000

Prior Convictions – Health & Safety Code section 11370.2

If you have at least one prior felony conviction in California for a drug crime that does not involve personal use of drugs, you face an additional and consecutive 3-year prison term for each prior conviction.

Controlled Substances; Aggravation of Crime – California Penal Code section 1170.82

If you are convicted under HS 11352 and you knew or reasonably should have known that the person to whom you sold, furnished, or gave the drugs was pregnant, had previously been convicted of a violent felony, or was being treated for a mental health disorder for a drug problem, the judge can use that fact to impose the harshest of the three possible prison terms for your sentence.

Offenses Involving Minors – HS 11353, 11353.1

A defendant convicted under HS 11352 faces additional penalties if the defendant used a minor to sell, furnish, or transport the drugs, or if the defendant sold, gave, offered to sell, or furnished the drugs to a minor. In this circumstance, the defendant convicted faces a 3, 6, or 9-year prison sentence.

Additionally, if the drugs were heroin, cocaine, or cocaine base, AND the illegal activity took place within 1,000 feet of a school, church, or other facility where minors are present, the defendant faces an additional 1 or 2 years in state prison.

PLUS, if the defendant is at least 4 years older than the minor, the defendant faces an additional 1, 2, or 3-year sentence in state prison.

Furthermore, one of these convictions could subject the defendant to a conviction of Contributing to the Delinquency of a Minor under California Penal Code section 272.

HS 11352 Defenses:

There are several strong defenses that may be available to your case. The experienced and skilled attorneys at McDowell Defense will examine your case in great detail and recognize which defense will be the fight your charges of sale or transportation. Some of these defenses include:

Illegal Search and Seizure
Police misconduct
Entrapment
Mistaken identity
Lack of knowledge
Lack of intent

Unlawful Acts – Health & Safety Code section 11366.7

Under Health & Safety Code section 11366.7, it is illegal for a wholesaler or retailer to sell a drug, chemical, or other laboratory device knowing or intending that such item will be processed into, or used to, prepare a controlled substance, and the drugs will be sold illegally or otherwise distributed.

This crime is chargeable as either a misdemeanor or a felony. The form in which it is charged will depend on the facts of your case and your criminal history.

The possible penalties for an HS 11366.7 conviction include:

Misdemeanor
$25,000 fine AND
1 year in county jail

Felony
3 years in state prison