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San Bernardino Possession of a Controlled Substance: What is the law and punishment?

California Health and Safety Code 11350(a) HS "Possession of Controlled Substance" is a "wobbler" meaning it can be filed as a misdemeanor or a felony.  HS 11350 will only be charged as a felony if the defendant is ineligible under Proposition 47. 

What Must Be Proven in a Possession of Controlled Substance Case?

HS 11350 "Possession of Controlled Substance" misdemeanor requires the following to be proven:

  1. The defendant exercised control over a controlled substance;
  2. the defendant knew of its presence;
  3. the defendant knew it was a controlled substance;
  4. the substance was in a usable quantity.

HS 11350 "Possession of Controlled Substance" felony requires the following to be proven:

  1. The defendant exercised control over a controlled substance;
  2. the defendant knew of its presence;
  3. the defendant knew it was a controlled substance;
  4. the substance was in a usable quantity;
  5. the defendant has one or more prior convictions for an offense specified under PC 667(e)(2)(c)(iv); or
  6. the defendant has one or more prior convictions requiring registration pursuant to PC 290(c).

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 misdemeanor Possession of Controlled Substance?

HS 11350 has maximum fine of up to $1,000 and/or up to 1 year in county jail.

What are the penalties for a felony Possession of Controlled Substance?

HS 11350 has a maximum penalty of a fine up to $10,000 and/or up to 3 years in State Prison.
Drug Registration. 

​HS 11350 requires life time registration as a drug offender.

Drug Diversion

HS 11350 is eligible for drug diversion programs if the defendant qualifies.  These programs include:

  1. Prop 36
  2. Drug Court
  3. California Penal Code 1000 PC - Deferred Entry of Judgment 

Completion of a diversion program will result in the case dismissed.

What are the defenses to Possession of Controlled Substance?

The defendant was prescribed the drugs by a medical doctor

Controlled substance includes certain drugs that are legal if prescribed by a medical doctor.  A valid prescription is a defense to possession of a controlled substance if the prescription is for the defendant, the drugs match the prescription, and the quantity of drugs is not more than that prescribed.    

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 had temporary possession to destroy or dispose of Controlled Substance


​If the defendant:

  1. only had temporary possession for the purpose of destroying or disposing of the controlled substance to terminate unlawful possession by another; and
  2. the possession was not prevent seizure by law enforcement.


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.  

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 11351 possession for sale

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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If you or a loved one has been charged with a crime, call the Law Offices of Steven McNicholl at (951) 405-0990. We have the skill and experience in San Bernardino County to protect your rights and get the best results in your case.

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