What is Drug Dealing & How to Defend it

While possession of drugs themselves is a criminal violation, a person may be in even more trouble if he or she possesses a controlled substance with the intent to sell it. California Health & Safety Code Section 11351 HS makes it a felony offense to sell a controlled substance, and violating this law may result in severe consequences for those convicted.

This offense might potentially lead to a prison term of two to four years, according to the California Health and Safety Code 11372. Furthermore, the Court can impose a punishment of up to $20,000 per offense. But in order to prove a violation of Section 11351, the prosecution must prove the following:

1. The accused possessed the drug substance illegally

It is possible that an accused is in the ‘actual’ possession of a drug, which means that he/she had the illicit substance on them, say, in a coat pocket.  Second, an accused can be in “constructive” possession of a drug, meaning that while the substance was not on his or her person, the substance was at a place controlled by the defendant, i.e., in his/her car’s glove box. The defendant still has the right to regulate what is going on with the drug because he/she has maintained the right to possess a drug in a constructive manner. More than two people may also have an illegal substance at the same time, for instance, in an apartment shared by two or more people.

2. The defendant had knowledge of the presence of the illicit substance 

In other words, simply knowing that the drug is in your possession means that you were aware of the drug in an area under your control. If the defendant did not realize he/she had the drugs, it would be unreasonable to hold someone accountable for the sale of drugs. For example, if you borrowed a car from a friend and the police found the drugs in the trunk, you shouldn’t be convicted of criminal liability if you didn’t know the drug was in the car in the first place.

3. That while he/she owned the illegal substance, the defendant intended to sell it

Whether or not the defendant intended to sell the drugs is usually the most critical part of a prosecutor’s case. However, that does not mean that you have to intend to directly sell the drugs yourself. You could be convicted of that offense even if you intended for someone else to sell the drugs. If the prosecutor can prove that you were in possession of a controlled substance but can’t establish that you intended to sell the drugs, the Jury could convict you of a lesser offense in accordance with Health and Safety Code 11350 HS. 

4. The type of controlled substance found in his/her possession

The prosecution must, under this criterion, establish that the substance obtained or within the control of the offender has the chemical composition of a known illegal controlled substance. The list of narcotics are covered under HS 11351 and by the Federal Controlled Substances Act and include:

• LSD
• cocaine
• GHB
• heroin
• opiates
• ecstasy
• peyote
• hallucinogenic substances

You can also face a similar prosecution if you’re found in possession of certain prescription medication like oxycodone without a valid prescription

5. The controlled substance was a usable amount 

A “usable amount” is more than mere scraps or traces of an unlawful drug. In order to pass a conviction, the drugs found should be sufficient enough to use even if it does not produce the intended narcotic effect on the user. 

Best Defenses for A H&S 11351 Charge

A qualified California criminal defense lawyer can argue on your behalf about the use or possession of a drug. The following is a short overview of some of the best-known defense strategies. It’s worth pointing out that the application of these defenses is on a case-by-case basis, which is why it is crucial to have an attorney by your side.

Illegal search and seizure

This is perhaps the most effective and most commonly used defense for drug charges. Law enforcement has to follow strict guidelines in order to obtain evidence, but they don’t always follow the rules as well. Police officers will generally assume that the average American isn’t aware of the extend of their Fourth Amendment, but here’s the gist; if they don’t have a search warrant and don’t have probable cause to believe that evidence of a crime is present, then it’s illegal. If your California defense attorney feels you are the victim of improper searches and seizures, he/she will likely file a Motion to Suppress Evidence under Penal Code 1538.5 PC. If your petition is successful,  your charges will be dismissed or significantly reduced. In addition, with a reduced charge, you could also qualify for a drug diversion program.

No intent to sell

While you may have been found to be in possession of a drug, that doesn’t mean that you intended to sell the said drug. If you can prove that you were only in possession of personal use, this could help reduce the overall H&S 11351 charge. It might seem counter-intuitive to admit to possession for use, but if the evidence of your possession is overwhelmingly present, this defense should work.

Lack of knowledge

Likewise, you cannot be convicted for drug possession and sale if the prosecutor cannot prove you knew of the drug’s narcotic nature.

It is not a credible defense to believe that cocaine really is PCP. However, genuinely believing that cocaine found in a bag was sugar is a strong defense. This defense also works best if the defendant has no prior records for drug charges or conviction.  A defendant is more likely to convince a judge or Jury using this defense if they are first-time drug offenders or not suspected users or dealers.

Not in possession

And finally, your defense attorney can always try and prove that you weren’t in possession of the drug in the first place. This defense would most likely be more effective with a case alleging constructive possession.

Possession for sale of a controlled substance is a serious felony that can result in severe penalties, likely to affect you for years to come. If you or a loved one have been charged with this offense, it is imperative that you consult with a Los Angeles Criminal Defense Lawyer as soon as possible. Criminal Defense Heroes, P.C. works tirelessly to ensure that our clients receive the best criminal defense representation possible. For immediate help on your case call us now at (323) 529-3660.

This article is for entertainment and information purposes only and in no way represents the attitudes, viewpoints, or legal advice of our law offices.