Possession
California Health and Safety Code Section 11350 prohibits possessing certain controlled substances without a valid prescription. A “controlled substance” is a drug or chemical whose manufacture, possession and use are regulated by the government under the United States “Controlled Substances Act”.
According to California law, the prosecution needs to prove that you had “active possession” of a narcotic, for instance having drugs in your pockets or in your bags. However, you can also be charged if you are proved to be in “constructive possession” of a narcotic or controlled substance. Constructive possession means not having drugs not on your actual person but you have control over the controlled substance and the ability to access it. This could be in your house, in your desk or your car, for examples.
Since Proposition 47 passed in November 2014, simple possession of drugs is a misdemeanor and carries a maximum sentence of one year in county jail and/or a fine of up to $1,000. However, the misdemeanor still looks bad on your criminal record and may cause employers to not hire you. Therefore, it is important to fight a drug possession charge.
According to California law, the prosecution needs to prove that you had “active possession” of a narcotic, for instance having drugs in your pockets or in your bags. However, you can also be charged if you are proved to be in “constructive possession” of a narcotic or controlled substance. Constructive possession means not having drugs not on your actual person but you have control over the controlled substance and the ability to access it. This could be in your house, in your desk or your car, for examples.
Since Proposition 47 passed in November 2014, simple possession of drugs is a misdemeanor and carries a maximum sentence of one year in county jail and/or a fine of up to $1,000. However, the misdemeanor still looks bad on your criminal record and may cause employers to not hire you. Therefore, it is important to fight a drug possession charge.
Examples of Defenses Against Possession
Ever since the “war of drugs” was declared, drugs has been one of the top priorities for law enforcement. In their over-zealousness, they often make mistakes and infringe on civil liberties while carrying out investigations. Walk Free Law can find out if the police have violated your rights while investigating you and prove this in court. It may be the case that the warrant was flawed or that you were searched without probable cause. This often leads to charges being reduced or dismissed.
Moreover, the prosecutor has to prove beyond a reasonable doubt that the drugs belonged, and this is not always possible. For example, if the drugs were discovered in a car that you are driving but is driven by several different people.
Even if it is obvious that the drugs are yours, it is almost always possible to have you placed in a diversionary program under Proposition 36 or PC 1000. This would require you to attend a class, which, if you complete successfully, your charges will be dismissed, you won’t go to jail and the incident will not appear on your record.
There are other mitigating factors to consider such as you are allowed to possess drugs for a short time in order to dispose of them. This factor does not apply if you only ditched the drugs to avoid their discovery or apprehension by the police.
Moreover, the prosecutor has to prove beyond a reasonable doubt that the drugs belonged, and this is not always possible. For example, if the drugs were discovered in a car that you are driving but is driven by several different people.
Even if it is obvious that the drugs are yours, it is almost always possible to have you placed in a diversionary program under Proposition 36 or PC 1000. This would require you to attend a class, which, if you complete successfully, your charges will be dismissed, you won’t go to jail and the incident will not appear on your record.
There are other mitigating factors to consider such as you are allowed to possess drugs for a short time in order to dispose of them. This factor does not apply if you only ditched the drugs to avoid their discovery or apprehension by the police.