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Possession for Sale: What is the law and punishment?

California Health and Safety Code 11351 HS "possession for sale" is a felony.  Unlike like simple possession, HS 11351 is not eligible for drug diversion programs.    

What must be proven in a possession for sale case?

HS 11351 "possession for sale" requires the following to be proven:

  1. the defendant exercised control over an amount of a controlled substance;
  2. the defendant knew of its presence;
  3. the defendant knew it to be a controlled substance;
  4. the substance was in a usable quantity sufficient to be used for sale or consumption.;
  5. the defendant possessed or purchased the controlled substance with the intent to sell.

In the United States justice system, a defendant is presumed innocent until proven guilty.  The prosecutor has the burden of proving guilt beyond a reasonable doubt that the crime occurred.

What are the penalties for a possession for sale?

HS 11351 has maximum fine of up to $10,000 and/or up to 4 years in county jail or state prison if ineligible under PC 1170(h)(3).

HS 11351 requires life time registration as a drug offender.

What are the defenses to possession for sale?

The defendant did not have control over the controlled substance

If the controlled substance was not under the actual or constructive control of the defendant than he or she is not guilty of possession of a controlled substance.  This includes situations where another person has possession or the controlled substance was found in an area owned or in the control of another.

The defendant did not know it was a controlled substance

The defendant must know that he or she is in possession of a controlled substance.  A defendant that borrowed a car or jacket for another and is later searched by police is not guilty of possession of controlled substance if they were unaware of the drugs.  

The drugs were for personal use only

It must be proven that the defendant had the intent to sell.  This is usually proven by the manner in which the drugs were stored, one large container vs small individual bags.  The presence of measuring devices also indicate an intent to sale.  If the drugs were for personal consumption only then a defendant is not guilty of HS 11351.

Bottom line, you need an experienced attorney who is willing to walk you through the entire process, evaluate your case effectively for weaknesses and exploit the issues in your case to achieve the best results.  The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.

See also

HS 11350 possession of controlled substance

HS 11352(a) Sale or Transportation of a Controlled Substance

HS 11352(b) Sale or Transportation of a Controlled Substance between Counties


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