If you are found in actual possession of the drug or "constructive" possession of the drug you may be found guilty of the offense. Constructive possession means that the drug may not be on your person but you knowingly exercise control over or the right to control the drug, either directly or through another person or persons. In order for the prosecution to prove its case they must show that the Defendant knew the substance was a controlled substance and that there was enough of the drug to constitute a usable amount. The elements of these offenses are as follows:
1.A person exercised control over or the right to control an amount of the drug;
2.That the person knew of its presence;
3.That person knew of its nature as a controlled substance; and
4.The substance was in an amount sufficient to be used as a controlled substance.
Illegal Stops and 'Search and Seizure' Issues
The first thing every good criminal defense attorney should do in a case involving controlled substances is to look and see whether the "stop" of the Defendant was legal. This area of criminal law is called "search and seizure" and it is very important to consider this aspect of every controlled substance case. For example, if the substance was found on the Defendant while he was driving, was he/she legally stopped by the police officer? Did the stop occur because of a legitimate traffic infraction or was it because of the Defendant's race or other non-legitimate reason? Or was the stop because the officer had a hunch since the Defendant seemed out of place in that particular neighborhood? If the reason for the stop/detention of the Defendant was not legal under the fourth amendment then the attorney can move to suppress the evidence because of the 4th amendment violation under Penal Code Section 1538.5. If the court grants this motion then the case is DISMISSED.
Possible Case Resolutions
It should be noted that for first time drug offenders with little or no criminal record they may be eligible for consideration under Penal Code Section 1000 (also known as "PC 1000"). This law permits first time drug possession offenders ( Defendants accused of sales are not eligible) to attend a 4 month drug class, avoid jail completely, then get the case DISMISSED with completion of the class and no arrests or convictions for 18 months. This is an ideal way for the first time offender to keep his/her record clean. Mr. Bruzzo has successfully negotiated many cases with the result that the client attended the Penal Code Section 1000 class and had the case dismissed.
The law also permits offenders with more then one drug possession conviction to attend another program under Penal Code Section 1210 (commonly known as "Prop. 36") with the result that the case is dismissed after completion of the program which is more intense then PC 1000.
Sentencing for Possession of a Controlled Substance
Possession of a Controlled Substance under Health and Safety Code Section 11377(a) can be filed as a misdemeanor or a felony. As a misdemeanor the maximum sentence is 1 year in jail; as a felony the maximum sentence is 3 years in jail. This Health and Safety Code Section includes methamphetamine as a controlled substance.
Under Health and Safety Code 11350 the maximum sentence is 3 years in prison. This code section can never be a misdemeanor. It is commonly used for Cocaine and Heroin cases. Because of the many programs available to these offenders jail time is rare and usually only occurs after the Defendant has failed several times at rehabilitation.