Thankfully over the years the nation’s draconian drug war has softened up quite a bit. Treatment, diversion or informal probation is typically possible with most misdemeanor drug crimes in California. However, the stigma of any criminal conviction can cause major issues for a person’s career, family and reputation. Depending upon how the drug offense is charged, an accused will face either a misdemeanor or felony complaint.

Typically, law enforcement officers take drug offenses very seriously, and their goal is to arrest anyone they suspect is in possession of, under the influence of, or involved in selling illegal drugs. Since police officers may not all be properly trained, and some are biased and fail to understand the psychology and sociology of addiction, many people are arrested for possession for sale of a drug (such as methamphetamine, heroine, cocaine or other drugs), when in reality, the accused was in possession of the substance for person use and not for sales.

Addicts will often be found with a “large” amount of a drug and some police will automatically assume that the intention was to sell. But doctors and psychologists who assist and treat people suffering from the medical problem of addiction, know that a frequent user or addict will often purchase an amount to last several days at a time. Having a scale is also not necessarily indicative of drug sales.

If you are a first-time drug offender, you need a criminal attorney to guide you through the various stages of the court proceedings. In addition, your defense lawyer should build solid defenses to fight the charges.

Although there are hundreds of practicing criminal defense lawyers, finding a trusted and experienced attorney may be challenging. At The Law Office of Ann Gottesman, Ann offers unmatched legal counsel on drug crimes. Ann works tirelessly to help her clients facing drug or alcohol crimes to get back on their feet and out of the clutches of the criminal system. Since alcohol and drug abuse really is a medical issue and not a “character issue”, Ann can oftentimes get a drug charge dismissed through informal diversion, PC 1000, Prop 36 or through Judicial Diversion pursuant to Penal Code section 1001.95. Even in cases that may be charged as a more serious offense, such as selling or transporting for sale narcotics or illegal substances, Ann can obtain expert testimony and opinions to show a prosecutor, judge, or jury that the accused was not possessing the drugs for purposes of sale, rather it was for personal use.

Of course, the facts of each case will determine the best possible defense and preferable way to proceed with the case in court. Attorney Ann Gottesman is eager to help and represent all clients facing drug crime charges in Pasadena, and Los Angeles criminal courts.

The Nature of Drug Offenses

A wide range of offenses exists in California as stipulated by the Penal Code and Health and Safety Code. Under the statutory guidelines, you may face several consequences for committing any prohibited drug offense. This includes spending time in jail, paying fines, or receiving a probation order.

Usually, drug offenses range from personal possession and to consumption of controlled substances. More serious cases involve distributing the drugs for commercial purposes and recruiting persons, especially minors, to transport these drugs.

Oftentimes, long after your arrest, the District Attorney or prosecutor’s office will file criminal charges if the facts support a charge be filed.   Prosecutor offices don’t file a case for every arrest because sometimes there is insufficient evidence to prove the accused’s guilt.  Police Officers arrest a lot of people and are not trained to know if the evidence is sufficient to warrant even the filing of charges. Cops are NOT lawyers and never went to law school.  They only know how to arrest, and even that is not always done correctly by local police department officers.  Sometimes a person is arrested and even has the misfortune of paying bail, only to learn months later that the prosecution “rejected” the case for insufficient evidence.   But in many cases, charges are filed.  A decision on whether to file the charge will be made by the DA (District Attorney) or city prosecutor close to the time of the first court date.     

When drug crime charges have been filed against you, it is imperative to seek the help of an experienced and compassionate defense lawyer.  At the Law Office of Ann Gottesman, Ann is passionate about defending her clients against drug charges.  Ann provides all potential new clients with a free consultation.  She analyzes the evidence, investigates the case and works hard to achieve the best possible result for her clients.

You should note that all criminal cases, including drug offenses, require the prosecutor to prove that you are guilty beyond a reasonable doubt. The prosecution team must establish sufficient evidence to prove each element of the crime before the judge or jury can find you guilty. As a result, you are presumed innocent and a good defense attorney can work on counterarguments to challenge the prosecution’s evidence and increase the chances of your success.

Common Types of Drug Crime Charges in California

While drug offenses may manifest in multiple forms, the judicial system is guided by the Health and Safety Code when it comes to the statutory language for most drug offenses.  The following are the common drug charges:

  1. Possession of Drug Paraphernalia- Health and Safety Code section 11364(a)

Drug paraphernalia is defined as objects to facilitate the intake of drugs. They are often directly linked to drug abuse, making it an offense to possess these items. Common examples include hypodermic needles, methamphetamine pipes, and spoons for cocaine consumption.  (However, oftentimes the prosecution will not file a paraphernalia charge if there are no other offenses connected to the case.)

While these items are identified to warrant arrest, several exceptions are made for hypodermic needles. You can avoid police apprehension by showing that your needles are medically prescribed by a professional. On the other hand, having needles without justification can be incriminating.

If arrested, it is always the best policy to refrain from explaining yourself to the police. It is always better to remain silent and ask for a lawyer.

Elements of the Crime

As with any criminal proceedings, the prosecutor goes first in presenting their case against you. This involves pointing out factors associated with the charged offense, also known as the elements of a crime. They are the building blocks for the prosecutor's case and must be proven beyond a reasonable doubt. The elements for the offense of possessing paraphernalia include:

  • You Were in Control of the Drug Paraphernalia

Being in control of drug Paraphernalia essentially means you possessed the device either actively or constructively.  For example, manipulating the item for drug intake, keeping the object in your possession or lending it out at will shows control. The prosecutor should provide proof you were in actual or constructive possession of the Paraphernalia for the charges to substantiated. 

  • You Were Aware of the Nature and Use of Drug Paraphernalia

Additionally, the prosecutor must show that you knew what the objects you possessed are used for. Naturally, if your arrest occurred as you consumed drugs using the Paraphernalia, the fact finder can make a reasonable conclusion on that element. If you were given a device from a friend and had no idea what it was, then you would not be guilty of knowingly possessing paraphernalia.

  • You Knew you Possessed the Paraphernalia

Some cases involve defendants who deny having prior knowledge that the items were in their possession. For example, If paraphernalia is found in your vehicle and others had access to your vehicle, it is possible you were not aware that the contraband was present in the vehicle at the time you were driving. This is an essential element to include because it demonstrates criminal intent, a crucial part of any criminal case.

Penalties for the Offense

The Health and Safety Code provides several outcomes for the crime of possessing drug Paraphernalia. The presiding judge will therefore exercise discretion when applying the penalty provisions to your case. The offense is classified as a misdemeanor. It translates to the following possible penalties:

  • A jail sentence of up to six months
  • Fine payments of up to $1000

In California no one really goes to jail for drug paraphernalia anymore.  It is a minor offense that can usually be negotiated down to a dismissal.

Defenses Applicable to the Offense

There are several defenses to the charge of possessing paraphernalia. They include:

  • You did not intend to use the drug paraphernalia
  • The items belonged to someone else
  • The collected evidence is not drug paraphernalia
  • Police engaged in misconduct, including unlawful search and seizures

 

  1. Possession of Controlled Substances pursuant to PC 11350

Possession of narcotics is prohibited under section 11350 of the Health and Safety Code. Further, the Controlled Substances Act prohibits possession for personal use.  Most possession offenses are now misdemeanors in California and no longer felonies.   

Elements of Crime for the Prosecutor to Prove

The prosecution must prove the following elements of the crime beyond a reasonable doubt:

  • You Possessed the Drugs in Usable Amounts

First, the prosecutor must prove that the police retrieved the drugs from you or your premises. This could mean that you left them in your car, bag, home, or any other place affiliated with you. Moreover, the amounts you possess must be usable, as negligible quantities will not suffice. The prosecutor will require police statements, witness reports, photographs, and other material linking you with the controlled substances to prove this element.

  • You Were Aware of Possessing the Drugs

Additionally, you must have known that you possessed the drugs before being found guilty. This element differentiates innocent persons who may have had evidence planted from those acting with criminal intent. 

  • You Knew the Nature of the Substance you Possessed

Similarly, you will not face a conviction unless the prosecutor can prove you knew the nature of the substances possessed. If a roommate placed a bag of white powder in your vehicle, for example, and you believed it was flour, not cocaine, then you would not be guilty of possession.

Defenses to the Crime

Presenting a strong defense is the goal in every criminal case.  A good criminal defense lawyer will assess the facts of your case and prepare for the best course of action. Some arguments to include are:

  • The drugs were issued under a medical prescription
  • The drugs in question were planted on you; you did not knowingly possess them, or another person left the contraband near or in your belongings
  • There was police misconduct leading up to arrest

Possible Penalties for the Offense

When the court proceedings are concluded, if there is a conviction, the criminal code includes the following possible penalties:

  • Up to one year in county jail
  • Court-ordered drug programs
  • A fine penalty for up to $1000

 

  1. Transportation and Sale of Controlled Substances under HS section 11352

The transportation and sale of controlled substances is an offense prohibited under section 11352 of the Health and Safety Code. Under HS 11352, it is unlawful to transport, sell, give away, or administer specific street drugs, including heroin, cocaine, as well as some drugs that can be possessed legally with a prescription, such as codeine, oxycodone and Vicodin.

This statute does not apply to trafficking, giving away or administering methamphetamine or marijuana. 

Elements that the Prosecutor Must Prove

Once arraigned in court, you will have the choice of having a preliminary hearing and then, if held to answer, a jury or court trial, or you may accept a plea deal with the prosecutor or Judge.   A good attorney will review the evidence with you and discuss all possible defense as well as the state of the prosecutor’s evidence before deciding which path is in your best interest.  If the case proceeds to a trial, there are specified elements that the DA must prove beyond a reasonable doubt. These elements include:

  • You Facilitated the Transportation for purposes of Sale of Drugs

The prosecutor will first need to prove your involvement in committing the offense. You should note that the prosecutor can present a case for this element even if you act through a third party or if you were an accomplice who was not the main actor. 

To transport drugs requires the person to move them from one place to another.  The distance can be very short and can be done by various modes of transportation, such as using a vehicle, a bike, walking or flying.  However, if you were transporting controlled substances or illegal rugs for personal use, you would not be guilty under this statute.  To be convicted of selling or transporting drugs under HS 11352, the prosecution must prove you intended to eventually sell the drugs.

Under Health and Safety Code section 11352, you can be charged with possessing illegal drugs for sale, but contrary to the drug sales statute codified in HS section 11351, the prosecutor must prove you committed or were engaged in specified actions.  For example, while HS section 11351 can be charged against a person who is simply possessing drugs with the intent to sell them in the future, HS 11352 only applies to a defendant for whom the evidence shows was actually selling or transporting the drugs for sale.

  • You Knew that the Items for Sale Were Controlled Substances

Secondly, the prosecutor must prove your criminal intent to commit the crime. This is an essential factor that must always be shown in any criminal case. It must be shown with evidence that the accused knew what the substances were—that they were drugs. Of course, the accused must be shown to have been aware that the drugs were present.  For example, if your friend asks you to drive his vehicle to a destination and you have no idea your friend placed illegal drugs in the trunk, you would not be guilty of a crime.

Activities Related to the Offense

As mentioned, drug trafficking may occur in various forms. The following are some of the activities linked to the crime:

  • Engagement in administering drugs to others
  • Selling the drugs directly or vicariously
  • Providing the drugs to third parties without payment

Possible Penalties for the Crime

Drug trafficking is classified as a felony offense in California. Consequently, you may receive a sentence of up to nine years in state prison or pay a fine of up to $20,000. Sometimes, the judge may issue both penalties, especially where aggravating factors exist.

Legal Defenses to Use During Trial

Some applicable defenses include:

  • You were a victim of forceful drug trafficking
  • You were unaware of the nature of the contents you transported
  • You did not intend to transport or sell the drugs
  • The drugs were intended only for personal use
  • The police uncovered the contraband during an illegal search or illegal seizure
  • Entrapment by police or conduct resulting in a violation of the accused’s constitutional rights

 

  1. Possessing Controlled Substances for Sale Purposes--HS section 11351

Under section 11351 of the California Health and Safety Code, you are prohibited from possessing narcotics for sale. Like drug trafficking, an accused may face serious charges for selling drugs because this crime is categorized as a felony under HS 11351. 

  • You Possessed the Narcotics with Intention to Sell

The primary element to establish is that you had an intention to sell the drugs and that they were not for personal consumption. The full list of elements the prosecutor must prove beyond a reasonable doubt in order to convict a defendant for violating HS section 11351 includes the following:

Elements of the Crime
  1. The Defendant either bought or possessed the controlled substance,
  2. The Defendant knew he or she possessed or purchased illegal drugs,
  3. The Defendant was aware of what the substance was (understood it was a controlled substance),
  4. The Defendant had in his or her possession a sufficient amount of the drug to use or sell, and the Defendant either:
    1. Possessed the illegal drugs with an intent to sell, OR
    2. Purchased the illegal drugs with intentions of reselling the drugs.

A commonly used legal phrase to refer to the intent to sell is indicated for sale. Upon further consultation with your attorney, you will understand the types of activities often linked to sales. Your criminal lawyer can then guide you on how to counter these accusations.

  • You Possessed Cash in Small Denominations

Police and prosecutors will argue that an ongoing sale is detectable from finding an accused with a large number of multiple dollar bills in small denominations. The large number of bills serve as evidence that an accused has made numerous sales, and each sale was for a small amount of illicit drugs.  Of course, there are more innocent explanations of why any person might possess numerous small bills.  Working for tips, and other factors can explain this.  It is not illegal to possess cash in any form unless the government can prove the money was obtained unlawfully.  If a warrant is issued for a search, police will often seize all cash found in an accused’s home, car or at his employment.  It is important to have a defense attorney file a motion for return of property to try and have the seized money and assets returned to the lawful owner.   

  • Possessing Scales and Small Packaging Bags

Further indications of possessing drugs for sale include owning or exercising control over weighing scales and packaging bags. However, scales and packaging can also be possessed by people who only have drugs for personal use and have not sold them.   

Penalties for Possession for Sale of Drugs under HS 11521

Upon being found guilty, you may face the following penalties:

  • Up to one year in county jail with or without probation,
  • 2, 3 or 4 years in county jail, and
  • $20,000 maximum fine

There are possible aggravating factors that district attorneys will use to file enhancement in drug sales cases.  For example, if the illegal drugs a person is convicted of includes heroin, cocaine base or cocaine, the accused will be facing the possibility of an additional 3 years if the weight of the controlled substances are more than one kilogram, ten years if more than 10 kilograms, or 25 years if the drugs weigh more than 80 kilograms.

Defenses to the Crime

Working with your defense attorney may help you raise these defenses:

  • The seized drugs were for personal use
  • You did not intend to sell,
  • You did not know the drugs were present
  • You were not in constructive or actual possession of the drugs
  • There was a case of mistaken identity
  • Illegal search and seizure by the police/ government,
  • The substance was not a controlled substance listed in the statute

 

  1. Diversion for Drug Crimes: PC 1000 and Proposition 36 and the Effects on Sentencing

Proposition 36 was voted into action and codified into Penal Codes section 1210 through PC 1210.1 and 3063.1.   It serves as an alternative sentencing option for drug crime offenders who qualify. It was passed in the year 2000 and aimed at providing more lenient outcomes for offenders involved in non-violent drug crimes.

Prop 36 declares that anyone facing a first or second time non-violent drug possession crime must be given the opportunity to do a drug treatment program instead of jail or prison.  The judge can impose out-patient or in-patient rehab depending upon the facts.

PC 1000 is another type of diversion where defendants only have to complete a very short out patient treatment (virtual classes online mostly now), in exchange for a full dismissal after 12 months. It is a pretrial diversion so if successfully completed there is usually no criminal record left.

To be eligible, the defendant must qualify by meeting these requirements:

  • The accused must not have suffered a non-PC 1000 drug offense within the past 5 years,
  • The current charges must not include anyone involving violence or the threat of it,
  • There must be no crimes involving drug sales or other more serious drug offenses,
  • The accused must not have suffered any felony convictions during the last 5 years.

“Diversion”, when it comes to sentencing for specified drug offenders, means that a court may sentence you to a treatment program instead of jail and if you successfully complete the treatment your case will be dismissed. It applies to nonviolent drug offenders charged with simple possession. Unfortunately, diversion under the California Penal Code does not apply to those charged with drug sale crimes.

However, even if you are charged with a drug sales statute that initially makes you ineligible for diversion, your lawyer may be able to convince the prosecutor to change the charge to one involving simple possession. Sometimes a negotiated deal with the prosecution, they will be willing to reduce the sales charge to a lesser charge called a lesser included charge such as possession.  Since you must necessarily possess the drugs in order to be guilty of “possession for sale”, simple possession is considered to be a lesser included offense of possessing a controlled substance for sale. 

Contact a Pasadena Criminal Defense Attorney

After you or a loved one experiences an arrest and is charged with a drug offense, you will surely feel scared and lost.  An experienced drug crime defense attorney like Ann Gottesman can help you navigate the criminal justice arena and increase you chances of a positive outcome.  Preparing a good defense requires the lawyer to analyze all the evidence and properly investigate the case.  Often times, there are defenses, mitigating factors, diversion or other options that can positively effect a defendant’s drug case.

At The Law Office of Ann Gottesman, you will receive high-quality legal services for any drug offense charge you may be facing in the Pasadena and surrounding Los Angeles County areas.  Ann has compassion for her clients and understands that facing criminal accusations is psychologically devastating to the accused and the family.  She is here to zealously and professionally represent her clients accused of criminal charges.  Attorney Ann Gottesman represents her client personally, and does not hand over her clients to other, less experienced lawyers.

For more information on drug offense defense services, or any criminal defense issues, contact Ann today at 626-710-4021.  She is happy to provide you with a free consultation about your case.