Written by attorney David Jon Pullman

Possession of a Controlled Substance (Health and Safety Code §§ 11350, 11357, 11377)

Possession of a Controlled Substance (Health and Safety Code §§ 11350, 11357, 11377)

Simple possession can be anything from an infraction to a felony, depending on the drug:

Infraction (fine only) - Less than one ounce of Marijuana.

Misdemeano r (6 month maximum) – more than one ounce of Marijuana.

Misdemeanor (12 month maximum) – Concentrated Cannabis, Ketamine, Steroids, Khat

Wobbler (can be charged as misdemeanor or felony) – Prescription Drugs (non-narcotic), Most Hallucinogens (LSD, Mushrooms, DMT, etc., but not peyote or mescaline), Stimulants (including Methamphetamine, but not Cocaine), Depressants, PCP, GHB.

Felony (3 year maximum) – Cocaine, Opiates (Heroin, Opium, etc.), Mescaline, Peyote, Synthetic THC, Prescription Narcotics.

To convict you of possession, the prosecutor must be able to prove beyond a reasonable doubt that you knew that you had the drugs, that you knew they were illegal drugs, and that there was a usable quantity of drugs. Common defenses include:

Illegal Search and Seizure – All drug cases involve a contact with police, a detention and/or arrest, and a search and seizure. If the police violated your 4th Amendment rights at any stage, you can get your entire case dismissed.

Lack of Possession – Depending on the circumstances, one of the most common defenses is that the drugs weren’t yours and they weren’t in your possession.

Transitory Possession– It is not illegal to possess drugs if you are only possessing them in order to discard or destroy them or turn them in to the authorities.

Knowledge – Under various circumstances it can be argued that you did not even know that the substance was there. It is also a good defense if you knew it was there, but you didn’t know it was an illegal substance.

Unusable Amount – You cannot be convicted for possessing trace amounts of a substance. It doesn’t have to be a full dose, but it has to be a usable amount.

Valid Prescription – It is not illegal to possess a controlled substance if you have a prescription for that substance. This is true, even if the prescription is very old.

Medical Marijuana – If you have a doctor’s recommendation or approval, you may legally possess as much medical marijuana as is reasonably related to your medical needs.

If no defenses apply, your lawyer can bargain to get your charges reduced or get your case dismissed after completion of Diversion, Deferred Entry of Judgment, or Proposition 36 Probation.

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