Review of the Heroin Laws in California
It's a felony crime in California to possess, sell, transport, or manufacture heroin, but only a misdemeanor drug offense to possess heroin for personal use.
If you are charged with selling or trafficking heroin, you face a felony that carries more severe penalties, such as up to 9 years in prison and fines up to $20,000 per offense.
Heroin is a highly addictive and dangerous illegal drug illegal. It's classified as a Schedule I narcotic, meaning there are no accepted medical uses, and medical professionals can't prescribe it.
California has numerous statutes prohibiting possessing, using, selling, manufacturing, and transporting heroin. Further, it's illegal to be under the influence of heroin.
Suppose you were convicted of simple possession of heroin for personal use? In that case, you could be eligible to participate in a California drug diversion program that includes Proposition 36, allowing you to get drug treatment and rehabilitation rather than serving time in jail.
If you successfully drug diversion, then your heroin charges will be dismissed by the judge at the end of the program.
In this article by our California criminal defense lawyers, we will look closely at the heroin statutes below. If you are arrested on suspicion of a heroin-related offense, you'll likely be charged with one or more of the following below, depending on the circumstances.
Possession of Heroin for Personal Use - Health & Safety Code 11350 HS
The "simple possession" crime under HS 11350 is related to when someone knowingly and intentionally possesses any controlled substance, such as heroin, for personal use.
Under California law, it doesn't matter how much heroin you possess; even if it's only a tiny "bindle" for personal use, it is still illegal. A conviction for simple possession of heroin is usually a misdemeanor with a:
- maximum penalty of 1 year in county jail, and
- fines up to $20,000.
- a judge could also impose lesser penalties like summary probation.
Suppose you have prior convictions for felony crimes such as murder or certain sex crimes? In that case, your heroin possession charge could be upgraded to a felony offense that carries up to 4 years in prison.
Possession of Heroin with Intent to Sell - Health & Safety Code 11351 HS
If you were arrested for possessing heroin, and the police have reason to believe you had the intent to sell it, then you will most likely be charged under the more severe statute HS 11351, which is called "possession for sale" of a controlled substance.
In these cases, the amount of heroin you possessed is not always relevant to the HS 11351 charge, even if you only had a small amount of heroin.
In other words, the prosecutor could charge you with intent to sell if there is evidence that you had the intent to distribute it.
Health & Safety Code 11351 HS drug sales are always charged as a felony, and if you are convicted, the penalties include up to 4 years in state prison and $20,000 in fines.
If the amount of heroin in your possession exceeded 1 kg, however, you could be facing an additional 3-25 years in prison and fined up to $8 million.
Selling or Transporting Heroin - Health & Safety Code 11352 HS
If you allegedly transported heroin, then you could be charged by the prosecutor under HS 11352 with felony selling or transporting a controlled substance.
If you are convicted, the penalties will always depend on the amount of heroin involved in the sale or transport and how far it was transported. For heroin in any amount, you could face:
- up to 5 years in prison,
- up to 9 years if you transported it across two or more county lines, and
- fines up to $20,000.
- if the amount of heroin exceeds 14.25 grams or you have prior convictions, the fines increase to $50,000.
- if you were caught selling or transporting 1 kg or more of heroin, you are facing an additional 3-25 years in prison and fines up to $8 million.
What Are the Related California Crimes?
- Driving under the influence of heroin - Vehicle Code 23152 VC: driving under the influence of heroin is classified as a misdemeanor in California.
- Under the influence of heroin - Health & Safety Code 11550 HS: If you are come into contact with the police for any reason and suspected of being under the influence of heroin, you could be charged under this statute, a misdemeanor carrying a fine of $1000 and up to 1 year in county jail.
- Being present while someone uses heroin - Health & Safety Code 11365 VC: it's a misdemeanor crime in California to even be in the same room with someone using certain controlled substances, such as heroin.
What Are the California Drug Diversion Programs?
Suppose you're charged with one of the minor heroin offenses discussed above? In that case, you might be eligible to participate in drug diversion under Penal Code 1000 PC.
This means completing an approved drug treatment program called deferred entry of judgment. After completing the program, your criminal charges will be dismissed and the records sealed.
Charges such as HS 11350 simple possession and HS 11550 being under the influence are eligible for drug diversion, but felony charges are not eligible. The other drug diversion options include Proposition 36 and a California drug court.
How Can You Fight Heroin Charges?
Here are several common legal defenses that a criminal lawyer can use to get heroin charges either reduced, dismissed, or reduced, including:
- Illegal search and seizure. The charges could be dropped if heroin is discovered due to an unlawful search and seizure by police;
- You didn't have the intent to sell. This defense is commonly used to get the charges of intent to sell to simple possession, which carries lesser penalties and makes you eligible for a drug diversion program;
- Entrapment. This defense is used when law enforcement coerced you into committing a crime you would have otherwise not committed;
- Police misconduct. Perhaps evidence was fabricated or altered;
- Gaps in custody and chain of evidence;
- Irregularities in testing and determining the drug type;
- The amount of drugs doesn't qualify for sentence enhancement.
Early intervention in the case process case by our law firm can make a massive difference in the case outcome.
Prefiling negotiations with law enforcement detectives and the District Attorney's Office could convince them not to file formal charges against you, which is known in the legal field as a “DA reject.”
Through our decades of experience, we know how to develop an effective defense strategy regarding the heroin chemistry, manufacturing, abuse, and tendencies of the law enforcement and prosecutors who investigate and charge heroin cases.
Further, we will be able to examine the case and determine whether you are eligible for a California drug diversion program that allows you an excellent opportunity for drug treatment rather than spending time in a jail cell.
Eisner Gorin LLP is located in Los Angeles County, California. You can contact us for an initial case review by calling (310) 328-3776 or use the contact form.