What is possession?

Possession means to have on one’s person, house, car or to have under one’s control. If a person is frisked and drugs are found in his pants’ pocket, that is possession. If the drugs are found in his car or in her purse or backpack, that would still be possession. If the drugs are in a storage unit and the only key is in the possession of the accused, then that is still possession because the storage unit is under his control.

What two things are required to be proved in a charge for possession of controlled substances?

First, the prosecutor must prove that the person charged with possession of a controlled substance knew or must have known that he or she was indeed, carrying the controlled substance. Second, the prosecutor must prove that the person charged knew that the substance in their possession was illegal.

For example, a person who owned a dry-cleaning shop was suspected of selling controlled substances from his dry-cleaning shop. Five days later, when the police searched the dry cleaners, they found controlled substances in the pocket of a suit that had been brought in for dry cleaning. The suit had already been dry-cleaned and was waiting to be pressed. The owner of the dry-cleaning shop was charged with possession of a controlled substance. The court ruled that even if the owner of the dry-cleaning shop had access to the suit, there must still be evidence of knowledge that there were controlled substances in the pocket of the suit. There must be knowing possession.

What’s the difference between simple possession and possession with intent to distribute?

Simple possession is sometimes penalized only as a misdemeanor or infraction, while possession with intent to distribute is penalized as a felony or offense. Simple possession carries a lighter sentence, while possession with intent to distribute has a harsher or heavier sentence.

How do prosecutors make a difference between simple possession and possession with intent to distribute?

The volume of drugs found in the possession of the accused is the basis for distinguishing between these two charges. When large quantities are found in the possession of the accused, then there is a basis for charging the accused with the crime of possession with intent to distribute.

In some cases, even if only a small quantity of drugs is found, but there are other indicators that the accused is intending to sell or is engaged in selling drugs, then, the crime charged could still be possession with intent to distribute. If for example the accused was arrested with items such as weighing scales, plastic baggies or sachets, business cards, money, then there would be a strong basis for a charge of possession with intent to distribute.

What is the base penalty for simple possession of controlled substances?

Under Section 11350 of the California Penal Code, the penalty for possession of a controlled substance is imprisonment in a county jail for not more than one year. The fine which may be imposed shall not exceed $70.

Is probation available for a charge of simple possession of a controlled substance?

Under Section 11350 (c) a judge may grant a probation, but the probation will be conditioned on payment of a fine of at least $1000 or community service for the first offense; for a second or subsequent offense, the fine shall be at least $2000 or community service. If the accused is unable to pay the fine, then community service shall be ordered in lieu of the fine.

If I am charged with possession, can I say that the drugs aren’t mine?

It is a possible defense but note that the crime is not defined as “ownership” of the drugs. The offense is defined as possession. This means that the drugs can belong to someone else, but if you are holding it at the time of the arrest, or if the drugs are found in your car, your house, your purse, backpack, suitcase or your locker and you are the only person who has control of it, then you are in possession of the drugs. It will not be a defense to say that the drugs are not yours because the crime does not involve owning the drugs, merely holding it in your possession. The law penalizes actual possession (found on your person) and constructive possession (found in a place where you have control).

It may be better to say that you had no idea that there were drugs in your car or house, especially if there are other people in the house (for example if you have a big extended family, if you’ve just had a party, or you rent out a room in your house). It may also be better to say that you had no idea that the drugs in the medicine cabinet were illegal. In this way, you may have been in possession of the drugs, but you had no idea that you were in possession of it, or you had no idea that the drugs in your possession were illegal.

These defenses are difficult to present, and they depend on a lot of factual circumstances. For instance, if there are four passengers in a car where the drugs are found, it would be difficult for the prosecutor to prove whom among the four was in possession of the drugs.

If you are caught while in possession of controlled substances which may be dispensed under a prescription, you can raise the defense that you are only in possession of the substance because you were delivering it to the prescription holder. You may also raise the defense that your possession is with the express authorization of the prescription holder.

What other defenses can I raise to a possession charge?

You can raise the lawfulness of the search and seizure which led to the discovery or seizure of the drugs. Others have raised a defense that the “drugs” found, when chemically analyzed, will prove that they are not controlled substances at all, or that the substance found has so very little concentration of controlled substances (some drugs contain contaminants, additives or extenders).

You may get lucky and the drugs which will be used in evidence against you turn up missing, or they were mislabeled. In this way, you can attack the chain of custody of the evidence against you and thus, raise a reasonable doubt.

You can even raise the defense that the drugs were planted, especially if the police officer on the case has had complaints lodged against him before of having planted or tampered with evidence. You can even raise the defense of entrapment or inducement as when a police informant induced you to carry the drugs or to pass it on to someone else.

Have you been charged with possession of controlled substances? Have you been charged with possession with intent to distribute? Do you need a criminal defense lawyer? Call any of the experienced criminal defense lawyers at Ramiro J. Lluis Law Office. They are willing to help.

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