Possession of a controlled substance is a serious offense in California, carrying significant legal consequences that can impact your personal and professional life. Being charged with possession can result in severe penalties, including jail time, fines, and a permanent criminal record. The implications of a conviction can extend beyond immediate punishment, affecting your future employment opportunities, housing options, and even your ability to obtain certain professional licenses.

At The Law Offices of Arash Hashemi, we understand the gravity of possession charges and the stress they bring. Since 2003, our firm has been dedicated to providing effective legal defense for individuals accused of drug-related crimes in Los Angeles. With over 20 years of experience in criminal defense, Attorney Arash Hashemi has successfully handled a wide range of possession cases, from simple misdemeanors to complex felonies. Our team is committed to defending your rights, ensuring you receive a fair trial, and working tirelessly to achieve the best possible outcome for your case.

Contact our office at (310) 448-1529 or fill out our online contact form to discuss your case and schedule a consultation.

Definition of Controlled Substances Under California Law

Controlled substances are drugs or chemicals regulated by the government due to their potential for abuse and medical use. California law classifies these substances to prevent illegal distribution and misuse while allowing legitimate medical and scientific use.

California categorizes controlled substances into five schedules based on their potential for abuse and accepted medical use:

  • Schedule I: High potential for abuse, no accepted medical use (e.g., heroin, LSD).
  • Schedule II: High potential for abuse, accepted medical use with severe restrictions (e.g., cocaine, methamphetamine).
  • Schedule III: Moderate to low potential for dependence (e.g., anabolic steroids, ketamine).
  • Schedule IV: Low potential for abuse relative to Schedule III (e.g., Xanax, Valium).
  • Schedule V: Lowest potential for abuse, limited quantities of certain narcotics (e.g., cough preparations with codeine).

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    Types of Drug Possession Crimes

    Actual Possession: Occurs when an individual has physical custody of a controlled substance. This means the drug is found on the person, such as in their hand, pocket, or clothing. For instance, if someone is stopped by police and drugs are found in their pocket, they are in actual possession of those drugs. In the case of United States v. Nenadich, 689 F.Supp. 285 (S.D. N.Y. 1988), the court ruled that the defendant had actual possession because the drugs were found directly on his person during a search.

    Constructive Possession: Occurs when an individual does not physically have the drug but has the ability and intent to control it. This can occur if drugs are found in a place the person controls, like their home or car. For example, if drugs are found in a person’s car, and they have the keys and knowledge of the drugs’ presence, they could be charged with constructive possession. The key factor is the ability to control the location where the drugs are found.

    Joint Possession: Arises when two or more individuals share control over a controlled substance. This can happen if drugs are found in a shared space, such as an apartment or a vehicle, and all parties are aware of the drugs and have the capacity to control them. For instance, if drugs are found in a shared apartment and both roommates know about the drugs and can access them, both can be charged with joint possession.

    Criminal Possession: Involves unlawfully possessing a controlled substance while being aware of its presence and illegal nature. It encompasses actual, constructive, or joint possession but requires proof that the person knew the substance was a controlled drug and had control over it. For example, if someone knowingly carries illegal drugs in their bag, they are in criminal possession of those drugs.

    Possession Laws in California

    California has strict laws governing the possession of controlled substances. These laws are outlined in various sections of the California Health and Safety Code, each specifying the regulations and penalties for different types of drugs. Violating these laws can result in serious legal consequences, including fines, probation, and imprisonment.

    Possession of Marijuana (California Health and Safety Code 11357)

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    • Overview: California law allows adults 21 and older to possess up to 28.5 grams of marijuana or 8 grams of concentrated cannabis for personal use. However, possessing amounts exceeding these limits, or possession by individuals under 21, is illegal.
    • Penalties:
      • Under 28.5 grams (by individuals under 21): Infraction with a fine of up to $100.
      • Over 28.5 grams: Misdemeanor punishable by up to six months in county jail and a fine of up to $500.

    Possession of Cocaine (California Health and Safety Code 11350)

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    • Overview: Possession of cocaine is a serious offense under California law. It is classified as a “wobbler,” meaning it can be charged as either a misdemeanor or a felony depending on the circumstances and the defendant’s criminal history.
    • Penalties:
      • Misdemeanor: Up to one year in county jail and a fine of up to $1,000.
      • Felony: 16 months, two years, or three years in state prison and a fine of up to $20,000.

    Possession of Methamphetamine (California Health and Safety Code 11377)

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    • Overview: Possession of methamphetamine is also considered a “wobbler” in California. The decision to charge as a misdemeanor or felony depends on various factors, including the amount of the substance and prior convictions.
    • Penalties:
      • Misdemeanor: Up to one year in county jail and a fine of up to $1,000.
      • Felony: 16 months, two years, or three years in state prison and a fine of up to $10,000.

    Penalties for Possession of Controlled Substances

    • Misdemeanor Possession:
      • Jail Time: Up to one year in county jail.
      • Fines: Up to $1,000.
      • Probation: Often includes conditions such as drug counseling, community service, and regular drug testing.
      • Diversion Programs: Eligible offenders may participate in drug treatment programs instead of serving jail time, particularly under Proposition 36.
    • Felony Possession:
      • Prison Time: 16 months, two years, or three years in state prison.
      • Fines: Substantial fines, potentially up to $20,000.
      • Probation: Felony probation may include strict conditions and regular check-ins with a probation officer.
      • Impact on Record: A felony conviction can result in long-term consequences, including loss of certain civil rights and difficulties in securing employment and housing.

    Factors Influencing the Severity of Penalties

    • Quantity of the Drug: Larger amounts of the substance can lead to more severe charges and penalties.
    • Type of Drug: Possession of more dangerous drugs, such as heroin or methamphetamine, typically results in harsher penalties.
    • Prior Criminal Record: Individuals with prior convictions, especially drug-related offenses, are likely to face stiffer penalties.
    • Circumstances of the Arrest: Aggravating factors, such as possession near a school or involving minors, can increase the severity of the penalties.
    • Intent: Evidence suggesting intent to sell or distribute can elevate a possession charge to possession with intent to sell, which carries more severe penalties.

    Possession with Intent to Sell

    Possession with intent to sell is a more serious offense than simple possession. It involves not only having a controlled substance but also having the intention to distribute or sell it. This intent can be inferred from various factors, such as the quantity of the drug, packaging materials, scales, and large amounts of cash found with the drugs.

    • Simple Possession: Holding a controlled substance for personal use.
    • Possession with Intent to Sell: Holding a controlled substance with the intention of distributing or selling it.

    Legal Implications and Additional Penalties

    • Prison Time: Felony charges can result in two, three, or four years in state prison, depending on the substance and quantity involved.
    • Fines: Substantial fines, often up to $20,000.
    • Probation: Strict probation conditions if granted, with regular reporting to a probation officer and potential mandatory drug treatment programs.
    • Asset Forfeiture: Authorities may seize assets believed to be connected to drug sales, including money, vehicles, and property.
    • Impact on Record: A felony conviction for possession with intent to sell carries long-term consequences, affecting employment, housing, and civil rights.

    Proposition 36 Diversion Program

    California’s Proposition 36, also known as the Substance Abuse and Crime Prevention Act of 2000, allows certain non-violent drug offenders to receive treatment instead of incarceration. The primary goal of Proposition 36 is to reduce recidivism by addressing the root causes of substance abuse through rehabilitation rather than punishment.

    To qualify for Proposition 36, an individual must meet specific eligibility criteria:

    • Non-Violent Offense: The offense must be non-violent and primarily related to drug possession or use. Examples include simple possession or being under the influence of drugs.
    • No Prior Violent Convictions: The individual should not have any prior violent or serious felony convictions, such as assault, robbery, or murder.
    • No Other Drug-Related Charges: The individual should not be simultaneously facing drug-related charges involving the sale or manufacture of controlled substances.

    Benefits of Proposition 36:

    • Avoid Jail Time: Eligible individuals can avoid incarceration by participating in a court-approved drug treatment program.
    • Rehabilitation Focus: The program emphasizes rehabilitation and recovery, providing access to counseling, therapy, and support services.
    • Dismissal of Charges: Upon successful completion of the program, the charges may be dismissed, leading to a clean criminal record.

    Process and Impact on a Criminal Record

    The process for enrolling in Proposition 36 involves several steps:

    1. Assessment: The court conducts an assessment to determine eligibility for the program. This includes evaluating the nature of the offense and the individual’s criminal history.
    2. Treatment Plan: If eligible, the individual is referred to a drug treatment program. The treatment plan typically includes counseling, therapy, and regular drug testing.
    3. Court Monitoring: The court monitors the individual’s progress throughout the program, requiring regular check-ins and progress reports.
    4. Completion: Upon successful completion of the treatment program, the court may dismiss the charges, resulting in no criminal conviction on the individual’s record.

    Impact on a Criminal Record:

    • Dismissal of Charges: Successful completion of Proposition 36 can lead to the dismissal of charges, effectively removing the conviction from the individual’s criminal record.
    • Future Opportunities: A clean record can significantly improve future opportunities for employment, housing, and other aspects of life, as it removes the stigma associated with a drug conviction.

    Common Legal Defenses Used in Possession Cases

    • Unlawful Search and Seizure: One of the most common defenses is to challenge the legality of the search and seizure. If the police conducted an illegal search without a warrant or probable cause, any evidence found can be suppressed.
    • Lack of Possession: Demonstrating that the defendant did not have control or ownership of the drugs is another effective defense. This could involve proving that the drugs belonged to someone else or that the defendant was unaware of their presence.
    • Entrapment: Arguing that law enforcement induced the defendant to commit a crime they otherwise would not have committed. This defense is particularly relevant in cases where undercover officers are involved.
    • Lack of Knowledge: Proving that the defendant was unaware that the substance in their possession was a controlled drug can lead to dismissal of charges.

    Importance of Challenging the Legality of the Search and Seizure

    Challenging the legality of the search and seizure is crucial in many drug possession cases. The Fourth Amendment protects against unreasonable searches and seizures. If the police violated this right, the evidence obtained can be deemed inadmissible in court, which could result in the charges being dropped.

    Role of Evidence and Procedural Errors in Defense Strategies

    • Chain of Custody: Ensuring that the evidence was handled properly and not tampered with is essential. Any break in the chain of custody can cast doubt on the integrity of the evidence.
    • Lab Testing: Verifying the accuracy of lab tests that identify the substance as a controlled drug. Inaccurate or faulty testing can weaken the prosecution’s case.
    • Procedural Errors: Identifying mistakes made by law enforcement during the arrest or investigation. Procedural errors can include failing to read Miranda rights, improper handling of evidence, or other violations of protocol.

    Example of Successful Defense

    Case Study: Superior Court of California, City of Burbank

    Outcome: Case Dismissed

    Case Overview: The defendant faced a potentially severe penalty, with up to four years in state prison due to a violation of Health & Safety Code Section 11360(a) – Transportation of Marijuana. A pivotal Preliminary Hearing brought about a significant change in the trajectory of the case. Following the Preliminary Hearing, the Court reduced the original charge to a misdemeanor, specifically possession under Health & Safety Code Section 11357(c). Furthermore, the Court allowed for the case to be dismissed upon the completion of a court-ordered drug program.

    Resolution: Felony Reduced to Misdemeanor, Case Dismissed

    Why Choose The Law Offices of Arash Hashemi?

    When facing serious drug charges, you need a defense attorney with extensive experience and a proven track record. Arash Hashemi has been an active member of The State Bar of California since December 2002. On his second day as a lawyer, Arash was already in court, participating in a bench trial. Over the years, he has handled a wide variety of criminal cases, from simple petty theft to complex felonies, including murder.

    Arash has also represented thousands of Californians accused of violating their probation or parole and has argued cases before the California Court of Appeals. He is admitted to practice before all California State Courts and the United States District Courts for the Northern, Eastern, Central, and Southern Districts of California. Currently serving as the 2024 President of the Criminal Courts Bar Association, Arash brings a wealth of knowledge, dedication, and a deep understanding of California’s criminal justice system to every case he handles.

    Contact a Los Angeles Drug Defense Attorney & Schedule Your Consultation Today

    Los Angeles Criminal LawyerFor expert legal assistance with your controlled substance possession charges, contact The Law Offices of Arash Hashemi. With over 20 years of experience in criminal defense, Attorney Arash Hashemi and his team are dedicated to providing professional, effective legal representation. We understand the serious implications of these charges and are committed to providing a solid defense to protect your rights and future.

     

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      Disclaimer: The content provided here is for informational purposes only and does not constitute legal advice. It is not intended to predict outcomes, as individual circumstances vary and laws may change over time. Those seeking legal advice should consult with a qualified attorney to understand how current laws apply to their specific situation. For detailed legal guidance on the topics discussed, please contact our law firm directly.