California’s legal system is structured to prosecute drug charges in an incremental way. Not all drug charges are treated the same. California law classifies drug charges as misdemeanors or felonies, with felony offenses being the most severe. This classification is based on several factors and substantially affects possible consequences, ranging from probation and fines to prison sentences. This blog explains the elements that lead the prosecution to try a drug charge specifically as a felony.

Quantity and Type of the Drug Involved

The categorization of a narcotic under California’s controlled substances schedule and whether a person is accused of possessing such drugs for personal use verses for sale or trafficking, plays a significant role in whether a criminal complaint will be filed as a felony or misdemeanor. California classifies controlled substances into 5 schedules:

Schedule I Controlled Substances

Schedule I drugs are controlled substances with no accepted medicinal value. These drugs have a high addiction and abuse potential, even for the most cautious users. They also have a high risk of causing severe physical or psychological dependence. If you are accused of a drug violation and the drug involved falls under this classification, you can face either misdemeanor or felony penalties. Common drugs under this classification are peyote, LSD, ecstasy, and heroin.

Schedule II Controlled Substances

Drugs under Schedule II are those that have high addiction and abuse potential, can result in severe physical and psychological dependence, but have accepted medicinal value. Most narcotics under this classification are deemed dangerous. Thus, they are subject to strict regulations, and prescriptions cannot be refilled. Examples include opioids (oxycodone, morphine, methadone, fentanyl, and hydromorphone), stimulants (amphetamine, methamphetamine, and methylphenidate), and cocaine.

Schedule III Controlled Substances

Controlled substances under Schedule III have low to moderate potential for psychological and physical dependence. These drugs are lawfully available with a doctor's prescription and have accepted medicinal value. However, they have a higher potential for abuse than drugs under Schedules IV or V. Examples of Schedule III drugs are Tylenol, Vicodin, ketamine, steroids (testosterone and anabolic steroids), and cannabis.

Schedule IV Controlled Substances

Schedule IV narcotics are those with a low abuse potential and low risk of physical and psychological dependence. They also have medicinal value. They include prevalent prescription drugs such as sleep aids (eszopiclone and zolpidem), benzodiazepines (diazepam and alprazolam), stimulants (carisoprodol and tramadol), and certain painkillers (phentermine and modafinil).

Schedule V Controlled Substances

Schedule V narcotics have the lowest abuse potential and psychological and physical dependence among all regulated substances. These controlled substances often contain limited amounts of certain narcotics. They are mainly used for medical conditions such as severe coughing, diarrhea, and pain. Prevalent drugs in this category include antidiarrheals (motofen or lomitil), cough preparations (Robitussin AC), and anticonvulsants (Lyrica).

If you are arrested for drug possession, the prosecution will look at the classification of the narcotic involved to determine whether to accuse you of a felony or misdemeanor violation. For example, simple possession of drugs under Schedule IV or V will likely lead to misdemeanor charges. On the other hand, possessing a drug under Schedule I may trigger felony charges, if the possession is proven to be for sale. Even schedule 1 drugs, if possessed for personal use, only carry the potential for misdemeanor charges in California. But in many other states they are felonies, even in cases with a small amount.

The prosecution will also look at the quantity of the narcotic involved. Smaller quantities of lower-risk controlled substances may lead to misdemeanor charges. On the other hand, a significant amount of highly dangerous controlled substances like fentanyl, meth, heroin, LSD, and PCP often result in felony charges.

Intent Surrounding the Case

Intent is one of the key elements in prosecuting certain drug charges in California. In drug possession, for example, the prosecution will look at what you intended to do with the drug you had. If the prosecuting attorney believes you had the regulated substance for your own use, they will likely charge you with simple drug possession, which is a misdemeanor. But if the evidence suggests you intended to sell those drugs, you will be charged with drug possession for sale, which is a felony.

In proving whether you meant to use or sell a drug, the prosecution will consider several factors, such as:

  • The quantity of the drug involved. If you are caught in possession of a larger amount of a narcotic than what any average individual would personally use, the prosecution or law enforcement will assume you had the drug for sale.
  • The packaging of the narcotic. If the narcotic in your possession is packaged in several separate balloons, baggies, bindles, bundles, or other ways prevalently linked to drug sales, law enforcement will argue that this kind of packaging says you had the drug for sale, not for your own use. Also, if law enforcement officers catch you with numerous packaging materials like baggies, they will suspect your intention to sell the drug.
  • Presence of drug paraphernalia. Possessing drug paraphernalia is a crime in itself under California law. However, it could also determine whether you possessed a drug for sale or your own use. Since paraphernalia such as syringes or pipes show use, their presence may lead the prosecution to charge you with misdemeanor charges of simple drug possession. However, should law enforcement catch you with items such as measuring instruments, weighing scales, lots of money, particularly in small denominations, or other instruments that might be used to package, separate, or dilute drugs, this discovery will lead the prosecution to believe you had the drug for sale and charge you with a felony.
  • Being intoxicated. If you are intoxicated with drugs at the time of your arrest, this fact may indicate drug possession for personal use rather than possession for sale. However, many drug users also sell their supply, so prosecutors may also look at other factors.
  • Frequent communication with buyers. If the prosecution determines that you have had frequent communications with drug buyers or potential drug buyers, you may be charged with drug possession for sale. The prosecutor can go through your call logs and text messages with a warrant or consent to make this determination. Also, if several people (suspected buyers) come to your place for brief amounts of time, you may be accused of possession of drugs for sale.

Prior Criminal Record

The history of criminal activity is an essential factor in determining whether a drug crime will be charged as a felony or misdemeanor. Accused persons with a record of narcotic-related convictions or violent felonies are highly likely to be subject to felony charges. Under California’s Three Strikes Law, a repeat offender may face enhanced sentencing, resulting in longer prison terms. This law provides that if you have 2 prior convictions for violent or serious felony violations and are accused of a 3rd serious or violent felony, you may be subject to a prison term of twenty-five years to life. Before Proposition 36 passed, the third felony under Three Strikes could be any felony. Thank goodness this was changed. We no longer have people with 2 old qualifying felonies getting a life sentence because they technically committed a felony when they stole a pizza.

If you have a record of narcotic-related crimes, you may be subject to increased consequences for a subsequent drug crime. The legal justice system usually considers repeated drug crimes as evidence of a pattern of ongoing criminal conduct.

Defendants with prior criminal records may have few options for diversion programs or leniency. Judges and prosecutors are less inclined to grant alternatives to prison time for those who tend to reoffend.

Presence of Aggravating Circumstances

Particular factors automatically raise the severity of a narcotic charge. These are known as aggravating factors. You may face felony charges if the following aggravating circumstances are present in your case:

You Sold or Possessed Narcotics Near a Playground or School

Even for drugs such as marijuana, whose possession for recreational use is lawful, there are limitations on where you can possess or use them. Marijuana use is only lawful when done in a private space away from the public. Should you possess a regulated substance near a prohibited area such as a playground, school, or drug treatment facility, you risk facing felony drug charges. On the other hand, selling drugs is already a felony crime. If you sell drugs in a prohibited area, it is an aggravating factor that will subject you to enhanced penalties.

You Sold Narcotics Around or to Children

California drug statutes are strict when it comes to safeguarding children from the effects of controlled substance use. It is therefore illegal to traffic or sell drugs around or to children or to involve a child in narcotic activities. If the prosecution charges you with any controlled substance offense and this aggravating factor is present, the charges may quickly escalate to a felony. (See CA Health & Safety Code § 11353.5.)

Driving While Intoxicated with Drugs

Driving while intoxicated with drugs is a crime on its own under California law, but it can be an aggravating factor in drug charges. Driving while intoxicated with drugs can be considered a misdemeanor. However, if combined with a drug charge, you may multiple misdemeanor charges.

For example, let us say the prosecution charges you with simple possession of drugs after finding drugs in your car. After further investigations, the prosecution team finds that you were driving the car in which the drugs were located and that you were high since you had consumed those drugs. In this case, you could be charged with the DUI and a separate charge for possession of drugs for personal use (or a felony for possession for sale if the facts support that charge.)

Organized Crime

Engaging in gang activities or organized crime is sufficient to raise your drug charge from a misdemeanor to a felony. That is because the link between narcotic-related activity and participating in any organized crime activity raises concerns regarding the sophistication and degree of your drug crime.

Participating in organized crime results in charges of gang enhancement, racketeering, and conspiracy. Also, it can lead to the prosecution filing felony charges for your narcotics-related activity. At times, organized crime can be considered a federal offense, which could result in your narcotics crime being prosecuted as a federal offense. Cases brought in federal court are aggressively tried, and a conviction carries severe consequences.

You Were in Possession of a Gun at The Time of Your Arrest

Under Health and Safety Code (HSC) 11370.1, possessing a loaded, operable gun while also in possession of a controlled substance is unlawful. Possessing a dischargeable gun may indicate an intention to commit an offense. You will face felony charges under HSC 11370.1, and a conviction carries a sentence of up to 4 years in prison. Apart from this sentence, your underlying narcotics offense will be prosecuted as a felony. This may lead to you spending a significant period behind bars, in addition to other consequences.

Evidence Tampering and Resisting Arrest

At times, police will conduct sting operations to determine whether a suspect is involved in drug activities. Consequently, most arrests involving narcotics crimes come as a shock to suspects. Your conduct when being arrested can affect the type of charges you face and the seriousness of the consequences you will be subject to.

Even though evidence tampering or resisting arrest is unrelated to the underlying drug activities, it can lead to additional charges in the same case making it harder to reduce the underlying charges through a plea negotiation with the prosecutor. It is always better to allow an officer to complete an arrest without any resistance and fight the charges later in court than resist the arrest if you think it is unlawful.

Use of Technology to Perpetrate the Drug Offense

You can utilize technology to perpetrate a drug offense by advertising drug sales via text or email. Also, communicating with potential buyers through the internet may be compelling evidence for the prosecution when demonstrating an intention to sell or an actual drug sale. Using technology can raise your misdemeanor charges to a felony.

That means facing enhanced consequences for the crime upon conviction. The legal implications of your offense are harsher when it is established that you used the dark web and cryptocurrency for a drug transaction. If you utilize technology to make drug transactions across state lines, you may face federal charges.

For example, when a package of contraband like an illegal drug is placed into the hands of the US Postal Service or if a private carrier like Fedex is used, the jurisdiction of the Federal Government is now implicated. If you mail such contraband like drugs, you could be charged with “Mailing Controlled Substances or Using a Communication Facility to Facilitate a Drug Crime” which is codified in 21 U.S.C. § 843(b), which are federal offenses.

Find a Skilled Drug Crime Attorney Near Me

Understanding how California law classifies drug crimes is essential if you have been charged, since the difference between a felony and a misdemeanor can substantially affect your life. If you are charged with a drug offense, securing expert legal counsel and representation is crucial. In many cases, a misdemeanor drug offense may qualify for diversion. If diversion is granted you will have your criminal charges dismissed and be able to obtain a clean record.

At The Law Office of Ann Gottesman, Ann has many years of experience and knowledge defending clients facing drug charges and safeguarding their rights. If you have been accused of any drug offense in Pasadena, CA, or in another Los Angeles County city, contact Ann Gottesman directly at 626-710-4021. She is always happy to give people a free consultation and case evaluation. Unlike many other law firms, you will never have to talk to a secretary or paralegal before speaking to Ann. She answers her own calls!