There are a number of reasons why a person may be found in a location with a larger than personal amount of a controlled substance. However, it does not necessarily mean that the person was intending to sell drugs to anyone. When the police arrest someone for possession, the individual may not have even been aware that the drugs were there.
An arrest for drug possession with intent to sell in California is not the same as a conviction. Even if the prosecutor makes it seem like there are no other options but to plead guilty, defendants have the right to fight criminal charges to avoid jail time and keep a felony criminal charge off their record. Talk to an experienced LA drug defense attorney about how to keep your record clear.
California Drug Possession With Intent to Sell Charges
California Health and Safety Code 11351 makes it a felony to possess certain controlled substances with intent to sell the controlled substance. Possessing or purchasing a controlled substance or other narcotic drugs with the intent to sell is a felony. Most drugs are classified as controlled substances by both the federal government and regulated by California law.
The elements of California's criminal charge of possession of a controlled substance with intent to sell contains several key legal elements: possession of a controlled substance with intent to sell for a charge of violating the law. To be found guilty, a person charged with the offense of possession of a controlled substance with intent to sell must have possession with intent to sell. However, a jury can find the "intent to sell" based on a number of factors, including the amount of the controlled substance.
Drug possession for sale for sale charges can be complex based on who was in possession and if there was any intent to sell or distribute the drugs. Anyone facing drug charges should have the help of an experienced criminal defense attorney who understands how prosecutors in California handle these types of drug cases.
Potential Penalties for a Conviction
Possession of a controlled substance with intent to sell is a felony. If convicted the penalties range from:
- Up to two, three or four years in county jail, and
- Up to a $20,000 fine.
In California, an individual charged with simple drug possession (without the intent to sell) may be eligible for a drug diversion program. Successful completion of a drug diversion program will have the criminal charges dropped. However, possession for sale charges is not eligible for drug diversion. However, if your criminal defense attorney can challenge that the drugs were intended for sale, the reduced drug charge may make you eligible for diversion to avoid a criminal record.
Elements of Possession of a Controlled Substance with Intent to Sell in California
The elements of the offense of possession of a controlled substance with intent to sell are:
- Unlawful possession of a controlled substance,
- Knowledge the illegal substance was present and was illegal in nature, and
- Intent to sell the controlled substance while in possession of the controlled substance.
The first element of possession for sale of a controlled substance is the unlawful possession. Actual possession, constructive possession, or joint possession can all be considered drug possession.
- Actual possession means direct and immediate physical control over the controlled substance.
- Constructive possession over a controlled substance means that the drugs were discovered in a location over which you exercise control. For example, if a driver has drugs in the car's glove box, the drugs would be considered to be the driver's possession because it was an area over which the driver exercised control.
- Joint possession is when you and at least one other person share either actual or constructive possession. For example, if a vehicle with a driver and passenger had drugs under the seat, both the driver and passenger may be considered to be in joint possession of the drugs and could both face drug charges.
The second required element is knowledge. This means knowledge that a controlled substance is illegal and within the realm of possession. Evidence of the following may be used to show knowledge in a case alleging possession of a controlled substance with intent to sell:
- Knowing the substance is a controlled substance,
- Knowing of the drug's presence, and
- Exercising control over the controlled substance.
A defendant cannot avoid a conviction just by claiming he or she didn't know the drugs were there or didn't know the substance was illegal. It may be up to the jury to decide whether or not they believe the defendant knew the drugs were in possession and illegal.
For example, a pizza chef is at a farmer's market looking to buy organic oregano. A passerby thinks it would be funny if the pizza chef put marijuana on the pizza instead of oregano and sells a bag of marijuana to the chef as "oregano." If the police arrested the chef, the chef may be innocent because he had a reasonable belief that the substance was oregano and not a controlled substance.
Intent to Sell
Whether you intend to sell the controlled substance is often the most critical part of a possession with intent to sell charge. The law requires that the person charged specifically intended for someone to sell the drugs, whether personally or through another party.
This distinction is critical because a personal possession conviction carries lesser penalties than a charge of possession of a controlled substance with intent to sell.
Possession of more drugs than a person would personally consume may lead law enforcement to allege the large quantity is indicative that the controlled substance is meant for sale. Large quantities may be paired with paraphernalia for sale such as baggies and scales to build circumstantial evidence that may be used to show intent to sell a controlled substance.
What Drugs are Included in California Intent to Sell Charges?
California's Possession with Intent to Sell laws specifically apply to certain controlled substances and categories. This includes:
- Opium derivatives (such as heroin),
- Certain hallucinogenics (including mescaline and peyote),
- Depressants (such as DMT or quaaludes), and
Drug possession for sale charges also applies to a number of prescription medications. If an individual is found in possession of a certain amount of prescription drugs without a valid prescription, the individual may face similar penalties for possession of illegal "street drugs." Prescription drugs that can result in drug possession with intent to sell may include:
- Morphine, and
Other controlled substances may fall under other California drug laws and may carry different penalties and limits for possession.
Marijuana and Synthetic Drugs Are Treated Differently
Marijuana possession and marijuana sales charges fall under different California Health and Safety Codes. Possession of cannabis for sale is generally a misdemeanor offense but can be a felony if sold to underage individuals.
Possession or sales of certain synthetic cannabis or synthetic stimulants are also under a different category in California. Possession or possession for sale of these synthetic drugs is generally treated as misdemeanor offenses.
Potential Legal Defense Strategies
There are many legal defense strategies to challenge a charge of possession of a controlled substance with intent to sell.
The first defensive strategy is to challenge the probable cause of law enforcement to make initial contact with the accused. The next potential defense argument would be to that the search and seizure were illegal and violated constitutional rights. When law enforcement stops an individual or searches them in violation of their constitutional rights, any evidence gathered through illegal means can be suppressed. When the prosecutor cannot use that evidence at trial, the prosecutor may have to drop the case.
Examples of an illegal search or seizure claim may arise out of:
- A warrantless search,
- A search that exceeds the scope of the warrant, or
- An illegal detention of the individual.
A successful challenge of the prosecutor's evidence to be used in a trial can completely change a case. This is why the facts and evidence require detailed and thorough research performed by an attorney who is experienced and knowledgeable regarding potential defenses to drug charges in California.
Other potential defenses to drug charges based on an intent to sell include:
- Personal use of controlled substance,
- Never taking possession of the substance, or
- Lack of knowledge the controlled substance was present in an area under the charged person's control.
The evidence of each case must be carefully reviewed by an experienced criminal defense attorney who understands police tactics and how the state prosecute's drug crimes. Your drug crime defense lawyer will explore the potential legal defenses for you and identify the best defense strategy in your criminal case.
Los Angeles Criminal Defense Lawyer William S. Kroger
Every aspect of a person's life can be affected when facing a criminal felony drug charge for possession of a controlled substance with intent to sell. By contacting an experienced criminal defense lawyer as soon as possible, your attorney can begin to build your case and challenge the prosecutor's evidence.
William S. Kroger understands how challenging it can be for someone facing a felony drug charge. William S. Kroger is a Los Angeles criminal defense attorney with a successful record of defending clients charged with violating California's possession of controlled substance with intent to sell. Contact William S. Kroger 24/7 at (323) 655-5700.