Drug Possession

California Health and Safety Code 11350 HS—Possession of a Controlled Substance

California Health and Safety Code 11350 (HS11350) is the statute that makes it a crime to unlawfully possess a controlled substance, such as illegal drugs or prescription drugs. This section is often referred to as “simple possession” or “possession for personal use”.

How can I be found guilty of Drug Possession?

The basic elements of drug possession are set forth in California’s Health and Safety Code section 11350. To be found guilty of this offense, the government must prove that: 

  1. You unlawfully possessed a controlled substance
  2. You knew of its presence
  3. You knew of the substance’s nature or character as a controlled substance
  4. The controlled substance was a usable amount. 

Consider the following example: Minnie, who doesn’t realize a cop is watching, pulls out a baggie of ecstasy pills to show off to her friends. In this situation she could be arrested for possession of an illegal drug. 

A closer look at Possession of a Controlled Substance 

What counts as a controlled substance?

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. Note that this section does not cover possession of marijuana. Below is an example of the controlled substances covered by this section. 

  • Methamphetamine
  • Cocaine
  • LSD
  • PCP
  • Heroin
  • Oxycodone
  • Morphine
  • Diazepam
  • Xanax 

What is the legal definition of possession? 

Under California Law, possession is equivalent to control. This means that possession isn’t only limited to the physical possession of the drugs (i.e. backpack or pocket). It can also mean that the drugs are within your control (i.e. at your house). Therefore, a person does not have to actually hold or touch a drug to exercise control over it. Having control over a substance could be:

  1. Actual possession: Physical possession of the controlled substance. John was pulled over for DUI and was found with cocaine in his pocket. 
  2. Constructive possession: Having access, or the right to control the drugs, even if it is not physically in your possession. Gloria has Adderall pills she bought from a friend, that she is saving in her school locker for future use. 
  3. Joint Possession: Two or more people possess a controlled substance at the same time. 

A boyfriend and girlfriend are found with prescription bottles of pain killers lying around in their car, and neither of them own up to who they “belong to”.   

It is important to mention that if the police find you with a large amount of illegal drugs or prescription medicine that is considered more than the average amount for “personal use”, you could be accused of possession of a controlled substance with the intent to sell. Learn more about HS 11351 here 

Having Knowledge of the Controlled Substance

The government does not have to prove that you have knowledge over which specific controlled substance you possessed. It must only be demonstrated that you knew of its presence, and the fact, that you knew of it as a controlled substance. 

Consider the following example: Jessica is at a college party that is getting shut down. She falls down onto the lawn, and a small bag falls out of her purse. In the bag is an assortment of pills that a friend told her to hold on to. 

When she is questioned by the police, she admits that she’s holding onto drugs, but they are not hers. The government does not have to prove that she knew what type of drugs she had, but only that she was aware of their presence and of their nature. 

What is considered a useable amount?  

A usable amount is a quantity that is enough to be used by someone as a controlled substance. Any useless traces are not usable amounts. However, a usable amount does not have to be enough in either amount or strength to affect the user. 

Liam is at a music festival. Police must escort him out for disorderly conduct. When detained, they ask him to see his backpack in which they find two empty baggies, with only what appears to be white, left-over, residue. Under these circumstances, he can only be arrested for being drunk in public, but not for possession of a controlled substance. An empty baggie with useless traces does not count as a usable amount. 

Penalties for Violating California’s Drug Possession Laws

Drug possession as MISDEMEANOR:  

  • Incarceration for a maximum of one (1) year, 
  • A maximum fine of one thousand (1,000) dollars, or
  • Both Incarceration and a fine 

Drug possession as a FELONY:

If the defendant has a prior conviction for a sex crime or a serious felony, drug possession is punishable by: 

  • Incarceration for a maximum of three (3) years.  

Drug diversion and Drug Court: 

Your attorney should always explore the possibility of drug diversion [web link] or drug court. This allows for the person to serve their sentence in a drug treatment program instead of serving jail or prison time. 

Related offenses:  

Defenses to Possession of a Controlled Substance

If you are charged with possession of drugs, a criminal defense attorney can help determine which defense best suits your case. Some defenses challenge the stated facts, testimony, or evidence in the case. Other defenses will target procedural errors.

The controlled substance in possession was prescribed 

Under HS 11350, you cannot be found guilty of possessing a controlled substance if you had a valid prescription for the substance from a physician, dentist, podiatrist, or veterinarian. 

Lack of possession

It may sound obvious or counter-intuitive, but “lack of possession” happens quite often. This defense can be used when the prosecution has the burden of proving that the defendant had “constructive” or “joint” control over the controlled substance.  For example, drugs in a house, where the homeowner is absent but a renter is present. 

Example:  There are drugs in a house where renters are present but the homeowner is absent. 

How can a Criminal Defense Attorney Help You:  

If you have been charged with simple drug possession in the San Francisco Bay Area, our attorneys will present the appropriate evidence to fight against all charges or help you secure a drug diversion program.

If you are ready to discuss your case with a criminal defense attorney for additional guidance, we invite you to contact us at (510) 988-5566 to set up a free and confidential consultation.