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BlogCalifornia Drug Possession FAQ

A criminal conviction for drug possession or drug trafficking in California can result in serious criminal penalties. The law in California criminalizes two distinct types of drug possession. Those crimes include simple drug possession and possession with the intent to sell. The law also differentiates between possession of controlled substances (i.e., narcotics) and marijuana. There are also separate criminal offenses for phencyclidine (PCP) and methamphetamines.

If you are currently facing a drug possession charge in California, the experienced California criminal defense attorneys at The Law Offices of David S. Chesley may be able to help. Our experienced legal team can go over your charge and potential penalties with you and develop a plan for moving your case forward. Call us today at 800-755-5174 or contact us online to schedule a free consultation.

How does Simple Drug Possession Differ from Possession for Sale?

If the defendant is found in possession of any substance which is listed under the California Health and Safety Code, then the prosecutor can charge him or her with simple possession. However, if the prosecutor believes that the defendant possessed the drugs with the intention of selling or distributing them, then the prosecutor can charge the defendant with “possession for sale” or “purchase for the purpose of sale.”

What Constitutes Drug Possession in California?

There are two types of drug possession which are criminalized under the law. Those include actual physical possession of a drug and constructive drug possession.

  • Actual physical possession of a drug means that the individual actually has the drug present on his or her person. For example, the drug could be hidden in the person’s front or back pants pocket or in the pocket of a jacket or coat which the person is wearing.
  • Constructive possession usually means that the drug is present in the defendant’s immediate vicinity. For example, if drugs are found during a house raid, a person who is merely visiting the home could conceivably be charged with constructive drug possession. The same holds true in the motor vehicle context. Lack of ownership over the home or vehicle may be a valid legal defense in a drug possession case.

What Penalties can be imposed for Drug Possession in California?

The potential penalties upon conviction for a California drug possession crime depend upon several factors. Those factors include the type and amount of the drug possessed and the reason why the defendant was possessing the drug.

With the passage of Proposition 47 in 2014, drug possession offenses became punishable only as a misdemeanor in California. Moreover, individuals serving time for drug possession charges in a state prison were allowed to file a petition with the court for resentencing. However, under this new law, not every inmate is eligible to petition the court for resentencing. This includes individuals who have been convicted of murder or rape or are registered sex offenders.

Following the passage of Proposition 47, possession of controlled dangerous substances which are not marijuana is always punished as a misdemeanor, rather than as a felony. A conviction for drug possession of this type can land a person in the county jail (rather than the state prison) for a maximum of one year. Drugs which qualify as controlled dangerous substances in California include the following:

  • Schedule I opiates and opium derivatives
  • Cocaine
  • Mescaline
  • Peyote
  • Synthetic cannabis
  • Schedule II narcotics
  • Schedule II opiates
  • Schedule III hallucinogens
  • Schedule III, IV, or V drugs

Marijuana possession, however, is penalized differently than other drugs under the law. Specifically, if an individual is found in possession of greater than 28.5 grams of marijuana (with the exception of concentrated cannabis), he or she can be incarcerated for a maximum of six months and/or fined a maximum of $500.

If the individual found in possession of marijuana (28.5 grams or less) is 18 years of age or younger, he or she will receive an infraction. This typically requires that the individual complete a mandatory drug education course, along with a specified number of community service hours.

What are the Potential Penalties for Possessing Concentrated Cannabis?

Individuals found in possession of a maximum of eight grams of concentrated cannabis are not breaking any California law. However, possessing over eight grams of concentrated cannabis can lead to a maximum of one years’ incarceration and/or a maximum monetary fine of $500.

How is Marijuana Possession Handled in California?

Under Proposition 64, recreational marijuana has been decriminalized, pursuant to the Adult Use of Marijuana Act. Under this new law, adults who are 21 years of age or older are allowed to buy, possess, and consume a maximum of 28.5 grams of marijuana. The law also permits them to consume eight grams of marijuana at their home or residence – or even in an establishment which holds a license for marijuana consumption.

Although limited consumption is legal under the new law, users are not permitted to smoke marijuana while operating a motor vehicle. They are also prohibited from smoking marijuana in any location where tobacco products are prohibited, as well as in most public places.

In addition to these general prohibitions, Californians are not permitted to possess marijuana on school grounds or on the grounds of a youth center, day care center, or other public place where children are present. Individuals may grow a maximum of six marijuana plants in their private residence. However, the residence is required to be locked and may not be visible from a public vantage point.

The new California laws regarding marijuana do not change anything with regard to medical marijuana. Moreover, medical patients who have a doctor’s recommendation do not have to pay a state sales tax on medical marijuana.

What are Possible Legal Defenses for California Drug Possession Crimes?

If you have been charged with drug possession in California, you may have one or more legal defenses available to you. These defenses can be hard to spot, however, so it’s important to have a qualified California criminal defense attorney review your case. Some common defenses in drug possession cases include:

  • Medical necessity – Specifically, you may be able to allege that you have a medical condition warranting limited drug use and/or that you are in possession of a valid prescription issued by a licensed physician.
  • Unlawful search and seizure – You may be able to allege that the drugs in question were found pursuant to an improperly issued search warrant or following an invalid search or seizure that violated your Fourth Amendment rights.
  • Entrapment – You may be able to allege that police officers or investigators utilized improper tactics or that they entrapped or illegally coerced you into committing the drug crime.
  • Faulty lab analysis – You may be able to challenge any lab analysis that was performed on the drugs in question, in order to show that you possessed a smaller amount of the drug than prohibited by law.

Contact a Criminal Defense Attorney in California Today to Schedule a Free Case Evaluation

If you have been charged with a drug possession crime in California, you need experienced legal representation in your corner advocating for you at all times. The experienced California criminal defense lawyers at The Law Offices of David S. Chesley can advocate for you throughout your criminal case, including at all criminal court proceedings and trials.

The potential consequences of a drug possession conviction are too great for you to handle your criminal case alone. Therefore, to schedule a free consultation and case evaluation with a criminal defense lawyer in California, please call us today at 1-800-755-5174, or contact us online.