More so than any other area of criminal law, clients charged with drug-related offenses often approach us confused about the charges they face. This is because in California, drug crimes are prosecuted under a wide variety of penal statutes. While these statutes all outlaw different behavior, the language is substantially similar, which can have the unfortunate effect of confusing those accused of these crimes.
Below are just some of the most commonly seen drug crimes in Orange County:
- Health & Safety Code section 11550 – under the influence of a controlled substance
- Health & Safety Code section 11350 – possession of a controlled substance
- Health & Safety Code section 11377 – possession of Methamphetamine
- Health & Safety Code section 11351 – possession of a controlled substance for sale
- Health & Safety Code section 11352 – transportation of a controlled substance
- Health & Safety Code section 11358 – unlawful cultivation of marijuana
As you can see, the list of crimes can be long. To make matters worse, clients accused of drug-related offenses often will violate multiple statutes in the course of their conduct, which elevates even a simple drug possession case into a multi-count criminal complaint.
Below we’ll discuss some of these statutes in more detail:
Health & Safety Code section 11550 – Under the Influence of a Controlled Substance
Under Health and Safety Code section 11550, it is unlawful for anyone to: 1) willfully use a controlled substance, and 2) be under the influence of the controlled substance. Let’s examine these parts in more detail:
An oft-forgotten question in drug crime cases is a fundamental one: “is the drug in question a ‘controlled substance?’” Thankfully, in California, whether a drug is a “controlled substance” is relatively easy to decipher; one merely needs to look into a list of drugs contained within Health and Safety Code section 11054 to 11058.
Any substances contained within the sections 11054 to 11058 are deemed to be a “controlled substance.” The one giant exception to this rule is marijuana; thanks to recent political and legislative changes, marijuana is now treated differently than any other kinds of drugs in California.
Note that even ordinary prescription drugs can be considered a “controlled substance.” While many of us do not consider prescription drugs as “drugs,” they are technically “controlled substances” as well (hence the need for a prescription!)
“Under the influence”
Many clients are confused as to the definition of being “under the influence.” This confusion is understandable, because this phrase is used in more than one areas of law, and in each area, the definition changes. For purposes of this section, a person is deemed to be “under the influence of a controlled substance” if the influence manifests itself in “any detectable manner.” In other words, the requirement in drug crimes is significantly lower than the requirement in Driving Under the Influence cases.
Health & Safety Code section 11350 – Possession of a Controlled Substance
Health and Safety Code section 11350 makes unlawful the possession of a controlled substance in usable quantities. We have already discussed what constitutes a “controlled substance,” so we will focus specifically on the word “possession” and the requirement that there is a “usable quantity.”
The concept of possession may seem commonsensical; after all, it is a word used in our everyday lives. But, like many things in the law, its definition isn’t quite as simple.
Under California law, “possession” can come in a variety of forms. Let’s examine some of the most common ways here:
“Actual possession” – this is the most straightforward type of possession. That is, you have direct physical control over the controlled substance. You have actual possession if you have the substance on your person, in your pockets, in your bag/wallet, etc.
“Constructive possession” – constructive possession means that while you don’t have immediate control over the substance, you have control over the person or place where the substance is located. For example, if a controlled substance is found in your room, or your locker, you are likely to have constructive possession of the substance. The key to constructive possession is the word “control.”
“Joint possession” – joint possession is a doctrine that deals with the following question: “what if two or more people have equal control over a single substance?” For example, what if a controlled substance is stored in a jointly used stash? Under the law, anyone who shares the stash (either actually possessing or constructively) has “joint possession” of the controlled substance.
Given the advancement of science, it is now possible to detect microscopic quantities of controlled substances. For example, while Tom does not personally use controlled substances, Tom may have some residue of controlled substances thanks to his job at the hospital. Of course, it would be absurd to hold Tom criminally liable for possession of a controlled substance in this scenario. This is why Health and Safety Code section 11350 provides for an additional requirement: that there is sufficient quantity of the substance to be “usable.” It is important to understand that this requirement does not mean the quantity must be to the level that the substance is ordinarily used; in other words, the quantity does not need to be enough to bestow the effect of the drug.
Health & Safety Code section 11351 – Possession of a Controlled Substance for Sale
Health and Safety Code section 11351 is an elevated version of section 11350. Section 11351 differs from section 11350 in that it requires an additional element that you possessed the controlled substance with the intent and purpose of selling the substance.
Being charged with a violation of Health and Safety Code section 11351 is extremely serious. First, this elevates your case to a felony; with the possibility of a prison sentence. Also, this charge will exclude your eligibility to participate in the various drug diversion programs (please see “drug diversion programs” for more information).
So how does a prosecutor show that you possessed the substance with the intent to sell? Obviously, none of us can read minds and determine precisely what one was thinking at any given time. As such, these cases typically turn on circumstantial evidence.
Some of the commonly used circumstantial evidence is as follows:
- Statements evidencing the intent to sell
- Large quantities (unlikely to be for personal use)
- The existence of other paraphernalia (baggies, scales, account books, etc)
Health & Safety Code section 11352 – Transportation of a Controlled Substance
Health and Safety Code section 11352 builds further on top of section 11350. To obtain a conviction under section 11352, the prosecution must prove two additional requirements: 1) you personally did or aided in the transportation, furnishment, or importation of a controlled substance, and 2) the quantity involved is enough to be used as a drug.
“Distance requirement” – while most of us think of transportation or importation of drugs as a complex operation that involves significant travel distance, that is actually not what the law requires. Under California law, the distance requirement can be quite short; for example, one can be convicted of section 11352 for driving a controlled substance for just a few blocks.
“Quantity requirement” – similar to Health and Safety Code section 11350, there is a requirement that the quantity involved be of a “usable quantity.” This is to prevent one from being convicted of section 11352 for having some residue in one’s car.
Lastly, as is the case with section 11351, a violation of Health and Safety Code section 11352 can be charged as a felony.