What Amount of Drugs Constitute A Drug Felony Charge In California? Penal Code Section 11352.5

California operates differently that other states for a drug felony. California lawmakers fix drug charges and punishment on a crime-by-crime basis, rather than a fixed classification basis. Drug felonies are crimes punishable by incarceration in state prison (versus shorter sentences for misdemeanors up to a year in county jail, per California Penal Code § § 16, 17, 18.5.)

A drug felony, in California, consists of a crime that carries a maximum sentence of more than one year in either jail or prison. The most serious of general felonies could even be punished with a life sentence. Individuals convicted of a California drug felony could also incur a fine of up to $10,000 in addition to—or, sometimes instead of—imprisonment.

The possession of controlled substances or those considered as “illegal drugs” could be charged in varying, increasing degrees as 1) a lesser infraction, 2) a misdemeanor crime or as 3) a more serious felony. The prosecutor will determine the degree of seriousness to a drug felony charge based on, among other considerations, the weight of the substance confiscated. The prosecution also takes into consideration in the filing of criminal charges the type of drug involved, its narcotic classification, the circumstances of the crime (such as location, e.g. in a schoolyard), and any other existing “aggravating circumstances” (such as violence and arms). For which, with the latter present, the decision of prosecuting a felony drug charge is more than likely to occur. In addition, a drug possession case could be charged as a felony if circumstances occurred in conjunction with other or additional charges, such as DUI (Driving Under the Influence) or possession of a controlled substance with the intent to sell, etc.

Some drug possession crimes in California may be classed by jurisdiction as ‘wobblers'. They wobble between misdemeanor and felony classifications for charging and sentencing. Infractions, being the least serious crime, do not include jail time. Misdemeanors, being more serious, may result in up to a year in jail. The most serious, felonies, carry with the violation a state prison sentence starting at a year or more. (Sometimes, first offenders who have no drug arrest record, may be eligible for probation.) The prosecutor and/or judge may charge and/or sentence based on other compounding circumstances of the possession. Previous strikes, weapons, assault, violence and sex offenses will shift the charge toward a drug felony indictment. However, the judge in California may overrule a felony charge, and decide to treat the conviction in a manner other than what the prosecutor had intended.

According to the Health and Safety Code section11351, any person possessing a classified narcotic substance, not under a medical prescription is subject to imprisonment under the penal code. Plus, any persons possessing or offering for sale 14.25 grams or more of a substance containing heroin can also be convicted of a drug felony violation (11352.5). Schedule 2 on the California Uniform Controlled Substances Act defines those narcotic drugs whose possession constitute a drug felony. California classifies not only well-known named drugs like heroin and ‘crack' cocaine as controlled illegal substances, but the state code also details the compounds used to manufacture them when categorizing. Applicable laws do not include for drug felony prosecution authorized possession or sale of many controlled substances when employing terms such as ‘illegal' and ‘prohibited', which would otherwise indicate a violation of code by possession. A substance is controlled by law, and possession is illegal, unless, upon an authorized written prescription of a dentist, physician, podiatrist, or veterinarian properly licensed to practice in the state. Despite previous failed attempts, in the November 2016 election, California voters successfully passed an initiative to legalize recreational use of marijuana within the state, decriminalizing its use.

The different classes of illegal substances subject to drug felony are divided into different Schedules under code: Schedule I pertains to opiates, opium derivatives, including cocaine base, and peyote, mescaline, or synthetic isomers, esters, ethers, salts, and combined derivatives; Schedule II classes narcotics or opiates; Schedule III pertains to hallucinogens; and, Schedule III, IV or V cover narcotics without a valid prescription.

In the event of a drug felony charge, the proper legal defense can provide persuasive arguments that serious cases may require. Specifically, if the intent after conviction of a drug felony is to convince the court over a possible qualification for a drug diversion or treatment program. Sometimes a judge may incorporate this with shortened sentencing. Due to recent changes in California drug felony laws, a drug possession charge may have a greater possibility of dismissal given an experienced legal defense.