Drug Possession While Armed

Possession of a Controlled Substance While Armed - California Health & Safety Code 11370.1 HS

Under California law, the felony crime of possession of a controlled substance while armed provides severe punishment for defendants found to have been personally armed with an operable firearm while simultaneously possessing a useable amount of a controlled substance, which is unlawful to possess under California Health and Safety Code 11370.1 HS.

HS 11370.1 makes it a crime to possess any amount of certain drugs while armed with a firearm.

While drug possession is a criminal offense by itself, anyone caught possessing both drugs and a loaded gun will face increased criminal penalties under the law. A conviction could result in up to four years in a California state prison and a fine of up to $10.000.

There are also collateral consequences for a felony conviction, such as a lifetime ban on owning or possessing a firearm.  

HS 11370.1 makes it a crime to unlawfully possess any amount of cocaine, methamphetamine, heroin, PCP, or an analog of them while armed with a loaded, operable firearm. Keep in mind that a violation of Health and Safety Code 11370.1 does not require that you use the gun either to harm or threaten someone or even simply to brandish the weapon. 

Instead, the mere possession of the firearm and the controlled substance or substances simultaneously is enough to establish a violation of the drug crime of Section 11370.1 for possession of a controlled substance while armed.

Simply put, in California, most cases of simple possession of a controlled substance are charged as misdemeanor crimes, many of which result in no jail time, and some of which even qualify for diversion programs that can have the charges dismissed.

But when someone is found in possession of certain illicit drugs while also armed, the stakes are escalated significantly. As noted, under California Health & Safety Code 11370.1 HS, possessing a controlled substance while carrying a firearm is a serious felony offense. You could face prison time if you are accused of this crime and convicted. 

What Does the Law Say?

HSC 11370.1 criminalizes the act of possessing specific controlled substances while simultaneously carrying a loaded, operable firearm. This statute explicitly punishes those found in possession of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine (PCP) while armed.

We should note that HSC 11370.1 does not cover all controlled substances, only those types of drugs specified within the statute. Examples of these controlled substances include:

• Substances containing cocaine or cocaine base.
• Substances containing heroin.
• Substances containing methamphetamine.
• Liquid, crystalized, or plant-based forms of phencyclidine (PCP).
• Cigarettes laced with PCP.
• Any substance containing any combination of the above.

For purposes of this law, being "armed" refers to having a firearm "available for immediate offensive or defensive use."

What Must Be Proven to Convict? 

To be found guilty, beyond a reasonable doubt, of violating Health and Safety Code § 11370.1, a prosecutor must prove all the “elements of the crime” under CALCRIM 2303. Jury Instructions, such as the following:

• Possession of a Qualifying Controlled Substance: You had actual constructive possession of a controlled substance. Actual possession means having physical control over the substance, while constructive possession implies having access to and control over the substance, even if it is not on the person.
• Usable Amount: The substance in question was in a "usable amount," meaning there were not simply traces of it.
• Knowledge of the Controlled Substance: You knew of the substance's presence and nature as a controlled substance.
• Armed with a Firearm: You were carrying a loaded, operable firearm at the same time you possessed the controlled substance. The firearm must have been readily accessible for immediate use.
• Knowledge of the Firearm: You knew you were carrying a loaded and operable firearm.

About showing that you possessed a useable amount of a controlled substance. This means that tiny amounts of residue do not provide sufficient evidence to convict under this section. The substance must be unlawful to possess.

For example, if you had a valid prescription for the type and amount of controlled substance at the time of arrest, you should be found not guilty of violating Section 11370.1.

The critical element that differentiates a violation for possession of a controlled substance while armed from a case of simply drug possession is the presence of a readily accessible, operable firearm. Each of these elements can be litigated at a trial. Sometimes, the firearm in question can't be proven to have been operable.

In other cases, the firearm might have been possessed so that it was not readily accessible, such as in a separate locked compartment or container from which the defendant could not immediately produce the weapon for either an offensive or defensive use. 

Accordingly, the concept of being “armed,” within the meaning of Health and Safety Code 11370.1, is narrower than the basic standard for possession, which would not generally include a requirement of ready accessibility.

What Are Some Examples?

EXAMPLE 1: During a routine traffic stop, law enforcement officers search David's vehicle and discover a bag containing methamphetamine in the glove compartment. Additionally, they find a loaded and operable handgun under the driver's seat. David can be charged with possession while armed.

EXAMPLE 2: Police execute a search warrant at Gina's home on suspicion of drug activity. Inside, they find heroin on a table in the living room and a loaded, operable firearm in a drawer within arm's reach of Gina. She can be arrested and charged with violating HSC 11370.1.

What Are the HS 11370.1 Penalties?

A violation of Health and Safety Code 11370.1 for having a controlled substance while armed is a felony under California law. If convicted, the defendant faces a sentence of two, three, or four years in California state prison, a $10,000 fine, or both – but you might be eligible for formal felony probation instead of prison time. 

If convicted of possession of a controlled substance while armed, you are not eligible for drug diversion under Prop. 36 – Substance Abuse and Crime Prevention Act, and California Penal Code 1000 PC - deferred entry of judgment (DEJ). 

Note that Health and Safety Code 11370.1 is a straight felony rather than a “wobbler,” meaning that it cannot be reduced to a misdemeanor. 

For that reason, a major point in plea negotiations for a defendant charged with having a controlled substance while armed is attempting to secure a reduction of the charges to a lesser offense, such as simple possession, which can be filed as a misdemeanor.

Simply put, Violating Health & Safety Code 11370.1 HS is classified as a felony in California. If you are convicted of this crime, you could face the following consequences:

• Imprisonment: A state prison term ranging from two to four years.
• Ineligibility for Diversion Programs: Unlike cases of simple possession, being convicted of possession while carrying a firearm disqualifies you from participating in diversion programs, which would otherwise allow first-time offenders to avoid a criminal record through rehabilitation efforts.
• Loss of Firearm Privileges: A conviction under HS 11370.1 will result in you being prohibited from owning or possessing firearms in the future.
• Immigration Consequences: If a non-citizen, a conviction may lead to deportation.

Related California Offenses for HS 11370.1

• Health & Safety Code 11350 – Possession of Controlled Substance. Under Section 11350 HS, a “controlled substance” is a drug or chemical whose manufacture, possession, and use are regulated by the government under the California “Uniform Controlled Substances Act.
• Health & Safety Code 11351 – Possession for Sale of Controlled Substance. This law makes it a felony to possess a controlled substance with the intent to sell. It applies to illicit street drugs, such as cocaine and heroin, hallucinogens like GHB, peyote, ecstasy, and LSD, and prescription opiate drugs, such as oxycodone, hydrocodone (Vicodin), and codeine.
• Health & Safety Code 11352 – Sale or Transport of Controlled Substance. This makes it a felony offense to sell, transport, furnish, administer, or import a controlled substance. If convicted, you face up to nine years in jail or prison and fines of up to $20,000.
• Penal Code 12022 – Armed with a Firearm. This law is a sentencing enhancement that adds from one to five years of additional prison time for felony offenses in which you are armed with a firearm or use a deadly weapon. 
• Penal Code 25400 – Carrying a Concealed Firearm. This law makes it a crime to knowingly carry a concealed firearm on your person or in a vehicle
• Penal Code 25850 – Carrying a Loaded Firearm. This law makes it a crime to carry a loaded firearm in a public place, on a public street, or in a motor vehicle. This charge is generally filed as a misdemeanor for up to one year in county jail.

Fighting Health and Safety Code 11370.1 Charges

Defenses to Section 11370.1 charges would include raising reasonable doubt about the abovementioned elements. Despite the severity of this crime, an experienced California criminal defense attorney can raise several defenses to challenge a charge under HSC 11370.1. Common defenses include, but are not necessarily limited to: 

• Lack of Knowledge: Arguing that you were unaware of the presence of the controlled substance or the firearm. This argument demonstrates that your possession was not willful or intentional.
• No Possession: Demonstrating that you did not have actual or constructive control over the substance or firearm.
• Firearm Inoperability: Proving that the firearm was not operable or available for immediate use during the alleged offense.
• Illegal Search and Seizure: If law enforcement conducts an unlawful search or seizure violating the Fourth Amendment, any evidence obtained may be inadmissible in court, which could lead to the dismissal of charges.
• Temporary Possession: If you can show that your possession of the controlled substance was momentary and to dispose of it or turn it over to law enforcement, this may serve as a defense.

A motion to suppress evidence under Penal Code § 1538.5 can be filed in an appropriate case arguing that the police lacked probable cause to search or acted inappropriately.  

A successful motion to suppress evidence in a Section 11370.1 case would likely result in the case being dismissed ultimately, as the physical evidence is the entirety of the government's case.

If you have been charged with the serious felony offense of possessing a controlled substance while armed in violation of California Health and Safety Code § 11370.1, contact our office.

Our experienced attorneys can assist you or your loved one both in court through vigorous litigation to secure the best possible outcome and before court through a prefiling intervention designed to reduce or drop the charges before a formal criminal filing is made.

Related Content:

• What is "Possession" of a Controlled Substance?