DRUG POSSESSION FOR SALES

Statistics indicate that Nationwide, drugs and narcotic-related offenses account for approximately one-third of all arrests. Southern California has had the distinction of leading the Nation in arrests for possession of a controlled substance (illegal drugs). And, according to the California Department of Corrections, about 20,000 of the state’s 160,000 prisoners are in jail or prison for drug offenses, such as being under the influence of a controlled substance and possession or sales of cocaine, PCP, LSD, heroin, methamphetamine (or “meth”), ecstasy (known as “X”, “XTC” or “Xtacy”), or transportation or sale of marijuana, or other newer drugs.

Unfortunately, police and prosecutors tend to interpret any available evidence, no matter how small, as evidence that narcotics found were possession for sale, and not for personal use. The difference in consequences are major, and the penalties for drug crimes range from very severe to probation and classes or a treatment program. Charges are generally based upon quantity, intent to sell or distribute and other factors such as weapons possession or use, evidence of sales activity, having large amounts of money, etc. The seriousness and ultimate punishment for drug crimes normally depends upon the quantity of the drug, the classification under the drug schedule, and the purpose of the possession (for personal use or for sale). Manufacturing of narcotics, such as methamphetamine labs run from a home, garage, warehouse, or other building, carry special charges, and police and prosecutors tend to seek out additional charges such as child endangerment if at all related to a family home.

Most drug offenses refer to the possession, use, sale or furnishing of any drug or intoxicating substance or drug paraphernalia, that is prohibited by law. Many drug offenses in the State of California are felonies. It is still a misdemeanor to possess less than an ounce of marijuana — 11357 (b) of the Health & Safety Code. However, possession for even the smallest amount of cocaine is a felony. And currently, there are more than 100 different types of anabolic steroids that have been developed, and each requires a prescription to be used legally in the United States. Some of the more common California violations are found at: Penal Code section 647(f) public intoxication of drugs or alcohol; the Health & Safety Code sections for possession and sale of drugs, 11350, 11351, 11352, 11357, 11358, 11359, 11360 and section 11550 under the influence of a controlled substance; and Business & Professions Code sections, 4060 prescription drugs and 25658 sale or furnishing of alcohol to a minor.

The most common Health and Safety Code violations prosecuted are:

DRUG POSSESSION

Drug possession is charged under several different code sections depending on the type of drug. 11350 HS is the possession of opium or cocaine or any derivative thereof. This offense is considered a felony.

•11357(a) HS is the possession of any concentrated form of cannabis (hashish). This offense can be a felony or misdemeanor.
•11357(b) HS is the possession of less than 28.5 grams of marijuana. This offense can be a misdemeanor or infraction.
•11364 HS is the possession of paraphernalia for injecting or smoking a controlled substance. This offense is considered a misdemeanor.
•11377 HS is possession of “Dangerous drugs” such as PCP, LSD, Ketamine and Methamphetamine. This offense can be a felony or misdemeanor. (Sentence for possession charges range from fines, probation and jail to diversion).

MANUFACTURING AND SALES (FELONIES)

•11351 HS is the possession for sale of opium or cocaine or any derivative.
•11355 HS is the sale or transportation of opium or cocaine or their derivatives.
•11378 HS is the possession for sale of “Dangerous drugs” such as PCP, LSD, Ketamine and Methamphetamine.
•11379.6 HS is the manufacturing of “Dangerous drugs” such as PCP, LSD, Ketamine and Methamphetamine. (Sentences usually include fines, formal probation and jail).

Fortunately, the recent passage of California’s Proposition 215 – which legalized medical marijuana and Proposition 36 – a ballot initiative that sends drug offenders to treatment programs instead of prison – has great potential for treating abusers of drugs rather than simply sending them to jail. Prop. 36 is not available for individuals accused of sale or manufacture of drugs, or charged with a violent offense or if there was a prior conviction for a violent crime, with possible exception of some domestic violence cases. This creates a great motivation to fight a case and reduce it from a mandatory sentence under possession for sale, to Proposition 36 sentencing, which consists of probation and drug treatment, and Proposition 36 specifically states that a defendant shall not be required to spend time in jail as a condition of probation. It also authorizes dismissal of charges when treatment is completed. In fact, anyone convicted of a non-violent drug possession offense may be eligible for this program provided:

•they did not use a firearm during the crime,
•they were not convicted of another crime in the same case, and
•they did not have prior convictions within the last 5 years.

Under “Prop 36″, drug offenders will receive probation with the stipulation that they participate in a substance abuse program for a period of one year and agree to follow up care.

Proposition 36 provides for the right of a person convicted of a nonviolent drug offense to receive probation and drug treatment. Any defendant previously “convicted” of one or more serious felonies is excluded (such as robbery, the offenses are listed under Sections 667.5 or 1192.7 of the Penal Code). However, if the person has a “Sustained Juvenile Petition” (which is similar to an adult “conviction’), Welfare and Institutions Code Section 203 states that “an order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime . . . nor shall a proceeding in the juvenile court be deemed a criminal proceeding.” Since, Prop. 36 expressly requires a defendant be “convicted” of a serious felony to be excluded, and the Welfare and Institutions Code explicitly prohibits a juvenile court disposition from being deemed a conviction; then a person with a prior juvenile record may qualify for Proposition 36. However, a recent Appellate Court decision eliminates Prop. 36 for individuals convicted of DUI in the same proceeding!

In many counties in California, including Los Angeles, Orange County, Riverside County, San Diego County, and San Bernardino County, there has been a relatively recent addition of “Drug Court” which is a special court given the responsibility of close supervision of select felony and misdemeanor cases involving non-violent drug-using offenders. However, participation is precluded for any offender who has been charged with a violent offense or who has a prior conviction for a violent crime, except some minor domestic abuse cases and usually excludes offenders charged with sales of drugs, possession for sale of drugs, or other serious offenses.

Diversion, which is another alternative, requires the accused to enter a plea of guilty to the charge, but the accused is NOT sentenced (the case is not final until the defendant is sentenced). The accused must then go through the diversion program, which is a series of classes. Drug testing is done randomly and a “dirty” or positive test can create new legal problems. Should the defendant violate the terms of the diversion, the court may go ahead and sentence the defendant as the defendant has already entered a plea and can be sentenced on that plea. Diversion is for first time offenders. And successful completion of the program will mean there will be no conviction on your record!

If you have questions, or want to discuss the firm immediately beginning work on your case, please contact us for a free ten-minute no-obligation consultation with one of our attorneys at 800.850.7312.

Serving The Following Areas

The Law Offices of Adam M. Leach handles cases throughout Southern California, including Los Angeles and Los Angeles County and the municipalities of Alhambra, Altadena, Arcadia, Azusa, Baldwin Park, Beverly Hills, Bell, Boyle Heights, Burbank, Chino, Covina, Commerce, Diamond Bar, Downey, Duarte, Eagle Rock, East Los Angeles, El Monte, Encino, Glassell Park, Glendale, Glendora, Highland Park, Hollywood, Irwindale, La Canada, La Crescenta, La Puente, Lincoln Heights, Long Beach, Lynwood, Malibu, Marina Del Rey, Maywood, Monrovia, Monterey Park, Montrose, North Hollywood, Norwalk, Oxnard, Pasadena, Pico Rivera, Pomona, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, Santa Clarita, Santa Monica, Sherman Oaks, South Gate, South Pasadena, Studio City, Temple City, Universal City, Van Nuys, Valencia, Walnut, West Covina, West Los Angeles, West Hollywood, and Whittier.

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