Drug possession in California can be charged as a misdemeanor or a felony, so it’s in your best interest to get experienced legal representation specifically from a criminal defense lawyer for drug possession.
Do you need a Criminal Defense Attorney in Fresno? If you have been arrested or charged with federal drug charges, it is essential to obtain legal counsel for help right away.
Criminal Charges of Drug Possession
It is against the law to be in possession of a controlled substance without having a valid prescription for that drug. “Controlled substance” can include both illegal or legal prescription drugs.
To be convicted of drug possession, it must be proven that the following are true:
- you possessed a controlled substance
- you did not have a prescription for the substance
- you knew of the substance’s presence
- you knew it was a controlled substance
- there was a usable amount of the controlled substance
Categories of Drug Possession Charges
There are two categories of drug possession charges: simple possession and possession with intent to sell. Either of these types of drug crimes can be charged in state or federal court.
Simple Possession
It is considered simple drug possession when there is no intent to sell or share the drugs with others. Simple possession is also sometimes referred to as possession for personal use.
Possession with Intent to Sell
As its name suggests, a charge of possession with intent to sell means that law enforcement officials believe you intended to sell the controlled substance in your possession.
Evidence that may indicate an intent to sell include:
- an amount of drugs larger than one person could consume in a reasonable time
- drugs pre-packaged in individual amounts
- packaging materials
Federal Drug Charges for Possession
Drug possession — simple possession or possession with intent to sell — can be charged as a federal drug crime in the following situations:
- Caught in possession of, using, selling, or manufacturing drugs on federal property or caught by a federal officer, such as a DEA agent
- Caught with the help of an informant
- The state and federal prosecutors made an agreement to charge on a federal level
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Types of Drug Possession
In addition to categories of drug possession charges, there are three different types of drug possession. They are:
Actual Possession — when you have direct control over the drug. This is usually when the drugs are on your person.
Constructive Possession — when the drugs were not found on your person but were in an area that you are in control of, such as your home or your car.
Joint Possession — when you and at least one other person share in the actual or constructive possession of the controlled substance or illegal drugs.
Classifications of Illegal Drugs
The federal Controlled Substances Act puts all controlled substances into one of 5 classifications or schedules. The specific schedule is determined by the substance’s medical use, potential for abuse, and safety or dependence liability.
Schedule 1 Drugs
Schedule 1 Drugs are considered the most serious when it comes to drug possession. They include:
- Heroin
- Cocaine
- LSD
- Ecstasy
Schedule 2 Drugs
Schedule II drugs include:
- Opiates
- Narcotics (for example, oxcodone)
Schedule 3 Drugs
Schedule III drugs include:
- Drugs containing more than 90 milligrams of Codeine per dosage (for example, Tylenol with Codeine).
- Steroids
Schedule 4 Drugs
Schedule IV drugs include:
- Xanax
- Clonazepam
Schedule 5 Drugs
The least serious criminal drug crime charges are for Schedule 5 drugs. This includes cough medicines containing less than 200 milligrams of codeine per 100 milliliters of product (for example, Robitussin and Phenergan with Codeine).
Alphabetical List of Controlled Substances
The United States Drug Enforcement Administration updates and publishes a complete alphabetical list of controlled substances annually.
Penalties for Drug Possession
The penalties for drug possession vary depending on whether the case involves misdemeanor or felony charges. The type and amount of the controlled substance involved also can affect the penalties.
Penalties for Misdemeanor Drug Possession
If convicted of the misdemeanor possession of a controlled substance, you could be facing the following penalties:
- jail time of up to one year in a county jail
- fines of up to $1,000
Penalties for Felony Drug Possession
If convicted of felony possession of a controlled substance, you could be facing the following penalties:
- prison sentence of from 16 months up to 3 or more years
- fines of up to $10,000
Penalties for Federal Drug Possession
There are statutory mandatory minimum sentences for federal drug offenses. They differ on the amount of drugs and what kind of drug.
The 5-year mandatory minimum is as follows:
- 100G of Heroin
- 500G of Powder Cocaine
- 28G of Cocaine base (crack)
- 100KG of Marijuana
- 5G of pure Methamphetamine
- 50G of a mixture of Methamphetamine
The 10-year mandatory minimum is as follows:
- 1KG of Heroin
- 5KG of Powder Cocaine
- 280G Cocaine base (crack)
- 1,000KG of Marijuana
- 50G of pure Methamphetamine
- 500G of a mixture of Methamphetamine
Legal Defenses for Federal Drug Charges
An experienced drug possession attorney can advise you on the best drug crimes defense strategy for your specific criminal case. Some legal defenses include the following:
Police have to have a valid California search warrant or probable cause in order to search you or your property. An illegal search or seizure occurs when:
- You or your property are searched without a valid California search warrant
- The search area was exceeded – for example, they only had a warrant to search your person, not your home
- You were detained and searched unlawfully without probable cause
Police misconduct can include planting evidence, lying about where they found a controlled substance, lying about the probable cause that led to the search and arrest, using excessive force to get a confession.
Sometimes undercover police will coerce or harass someone to get them to do something that they otherwise wouldn’t have done. In order to use this as a defense, the coercion and harassment have to be at a level that would be hard for a reasonable person to refuse.
If you were in possession of prescription drugs with a valid prescription for yourself and used those drugs according to the prescription, then you can’t be guilty of drug possession.
In order to be guilty of drug possession, you had to have known that you were in possession of a controlled substance and knew that it was a controlled substance.
This defense works only if you possessed the drug to dispose of them to stop someone from possessing them unlawfully, and if you didn’t possess the drugs to prevent them from being taken away by law enforcement.
Do you have drug possession charges against you? If you have been arrested or charged with a drug crime, it is essential to obtain legal counsel for help. It’s important to take your charges seriously. Don’t just hope for the best. Hire a drug crime lawyer who understands your situation and the consequences you face.
Your Defense Attorney for Federal Drug Charges
I’m Mark A. Broughton and I’m here to fight for you. I have been a defense Attorney for 40+ years and have represented thousands of people accused of crimes. I have extensive experience representing citizens charged with Felonies, Federal Crimes, Federal Drug Possession, Drug Manufacturing, Transportation/Distribution of Methamphetamine, and Possession for Sale to name a few.
Your Defense Attorney for Federal Drug Charges
I’m Mark A. Broughton and I’m here to fight for you. I have been a defense Attorney for 40+ years and have represented thousands of people accused of crimes. I have extensive experience representing citizens charged with Felonies, Federal Crimes, Federal Drug Possession, Drug Manufacturing, Transportation/Distribution of Methamphetamine, and Possession for Sale to name a few.
About Mark Broughton:
Compassionate, highly experienced, exceptional reputation, ethical and honest:
Mark Broughton has been practicing law for over 40 years. He estimates that he has conducted over 200 jury trials – everything from DUIs, drug cases, sex cases, domestic violence, assaults, “three-strikes,” dozens of cases involving criminal street gangs, gun/deadly weapons, drive-by shootings, robberies, attempted murders, and murders, including special circumstance murder cases.
He has received many outright Not Guilty verdicts for his clients in all of these types of cases, including several murder cases – at one time between 2005-2007, the jury found his clients Not Guilty in four separate cases in a row.
Mark Broughton is qualified as a death penalty lawyer and is on the special circumstances/death penalty panel of attorneys in Fresno, California, where he is regularly appointed to special circumstances/death penalty murder cases by the Fresno County Superior Court.
Other Qualifications:
- Certified Specialist Criminal Law, State Bar of California
- Board of Trustees, State Bar of California
- Chairman, Fresno County Bar Association, Criminal Law Section
Mark Broughton enjoys close relationships with his clients. He sees every individual’s situation with compassion and empathy and believes that every person has the right to a fair trial and is innocent until proven guilty.
Above all, he enjoys helping reunite his clients and their families during and after dealing with perhaps the most difficult time in their lives, going through the challenging criminal process with them.
Practice Areas
Criminal defense lawyers sometimes specialize, so you’ll want to ask your defense lawyer to be sure they can help with the specific drug charges you’re facing. Mark Broughton handles drug charges and will fight to get you the best possible outcome. Drug crimes range anywhere from possession to drug trafficking, so the legal defenses and penalties vary greatly. Drug charges can include possession, possession for sale, manufacturing, DUI, and others. Drug charges also may be prosecuted in state or Federal Court, so it’s important that your defense lawyer has experience in both courts. Mark Broughton does.
Drug crimes range anywhere from possession to drug trafficking, so the legal defenses and penalties vary greatly.
Drug crimes include:
- Possession
- Possession for sale
- Manufacturing
- Under the influence
- DUI
- Cultivating, selling, or possessing more than the allowed amount of marijuana
A drug crime, depending on what type of crime, can be a misdemeanor of a felony. The penalties vary but they usually include imprisonment, thousands of dollars in fines, and probation. More significant cases can be prosecuted in Federal Court with much more severe punishment.
Drug manufacturing is the illegal production of drugs, narcotics, or controlled substances. It’s prohibited to engage in or offer to engage in any activity that helps in the manufacturing of illegal substances.
You do not have to finish the manufacturing process to be guilty of drug manufacturing. This crime is committed as soon as the drug manufacturing process begins.
Some of the most commonly manufactured controlled substances in the United States are:
- Cocaine
- Methamphetamines (Meth)
- PCP
- Heroin
- Ectasy
- LSD
- Marijuana
Drug possession, also known as possession of a controlled substance, under California Health and Safety Code 11350 makes it illegal to possess certain drugs without a valid prescription as well as illegal drugs. Some of the controlled substances under HS 11350 include but are not limited to:
- cocaine
- opiates
- heroin
- peyote
- LSD
- hydrocodone
- codeine
- oxycodone
“Possession” of a controlled substance means that the defendant exercised control over the drug, knew of the presence of the drug, knew that it was a controlled substance, and had enough of the drug that it could be used as a controlled substance.
Actual possession means that you have direct control over the drug. This usually means that the drugs are on your person.
Joint possession is when your and at least one other person share in actual or constructive possession of the controlled substance.
Constructive possession means that drugs were not found on your person but were found in an area that you are in control of, such as your home or your car.
Possession for sale is possessing certain controlled substances with the intent to sell or distribute them. Some of the controlled substances under this law include:
- Opiates
- Cocaine
- Peyotes
- Heroin
- GBH Gamma-hydroxybutyric acid
- Some hallucinogenic substance
- Oxycodone (Oxycontin)
- Hydrocodone (Vicodin)
- Codeine
In order to be guilty of possession for sale, you have to have known that you possessed or purchased enough of the drug to sell and knew the nature of the drug. You also had to have the intent to sell.
Possession for sale is a felony and the potential penalties are as follows:
- Felony probation
- Incarceration time
- A maximum fine of $20,000
Cases prosecuted in federal court could face much more severe punishment.
Prescription drug fraud can be committed by doctors or patients. Patients commit prescription drug fraud in order to obtain a prescription for a controlled substance through fraud, deceit, misrepresentation or concealing facts. Doctors commit prescription drug fraud by writing illegal prescriptions either for themselves, friends, family, or patients.
Examples of Prescription Drug Fraud
- A woman goes to the doctor with a fake injury in order to get prescription pain killers.
- A man goes to multiple doctors for the same problem in order to get multiple prescriptions of a controlled substance.
- A doctor charges a flat fee to write patients any prescription they want.
Prescription drug fraud is a wobbler, meaning it can be charged as a misdemeanor or a felony. Cases could be charged in state or Federal Courts. If charged as a misdemeanor the penalties include:
- Misdemeanor probation
- Imprisonment
- A fine up to $1,000
If charged a felony the penalties include:
- Felony probation
- Imprisonment
- A fine up to $20,000
If a medical professional commits prescription drug fraud they will likely lose his or her professional medical license. Cases prosecuted in federal court could face much more severe punishment.
