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What is "Possession" of a Controlled Substance?

Posted by Dmitry Gorin | Jun 18, 2024

What is the legal definition of "possession" of a controlled substance? In California, illegal possession of a controlled substance is a crime under Health and Safety Code Sections 11350 and 11377 HSC.

California Health and Safety Code 11350(a) HS makes it a misdemeanor offense to be in the unlawful possession of a controlled substance, which includes both street narcotics and legal prescription drugs without a valid prescription.

What is "Possession" of a Controlled Substance?
California law recognizes three general types of "possession" of a controlled substance.

California Health and Safety Code 11377(a) HS makes it a crime to have possession of methamphetamine. Simple possession for personal use is a misdemeanor punishable by up to one year in jail and up to $1,000 in fines.

HS 11350 says, "(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code."

Depending on whether the crime is charged as a misdemeanor or felony, you could face up to a year in jail or several years in prison if convicted. That being said, one key element prosecutors must prove is that you had the drug in question. But what constitutes "possession?" Let's take a closer look.

What are the Categories of Possession?

California law recognizes three general types of "possession," actual possession, constructive possession, and joint possession. All three types can result in criminal charges, but it's generally easier to prove certain types of possession than others.

Actual possession refers to a scenario where an individual has physical control over a controlled substance. This means the substance is on the person, such as in their pocket, purse, or hand. Actual possession is the most straightforward form of possession to understand and prove.

Drug Possession

Example: Jane is stopped by the police for a traffic violation. During the stop, the officer notices a small bag of cocaine in Jane's purse. Since the cocaine is in her purse, which she is carrying, Jane is in actual possession of the controlled substance.

Constructive possession occurs when an individual does not have physical control over the substance but has the ability to exercise control or access to it. This means the person is aware of the controlled substance's presence and has the power and intention to control its disposition or use.

Proving constructive possession can be challenging unless there is clear evidence that links the defendant to the location of the drug.

Example: John rents a storage unit and places a large quantity of methamphetamine inside. Although John does not carry the methamphetamine with him, he has the key to the storage unit and can access the drugs whenever he wishes. In this case, John is in constructive possession of the methamphetamine because he has control over the location where it is stored and the ability to access it.

Joint possession occurs when two or more individuals share control over a controlled substance. This means that each person involved can exercise control over the substance, even if they do not have physical possession of it simultaneously. Joint possession varies in difficulty to prove, mainly if the drug was found under one person's control but not the other.

Example: Sarah and Mike are roommates, and they both use and store heroin in their apartment. Even if the heroin is found only in Mike's bedroom, both Sarah and Mike can be charged with joint possession if it is evident that both had knowledge of and access to the heroin and they intended to share control over it.

What are the Penalties?

The penalties for possession of a controlled substance in California vary depending on several factors, including the type and amount of the substance, the individual's criminal history, and whether the possession was for personal use or with the intent to sell.

Under California law, simple possession of a controlled substance is a misdemeanor offense. Still, certain factors, such as prior convictions, the amount of the drug, or the presence of weapons, can escalate an offense to a felony. For misdemeanor offenses of simple possession, the possible penalties include:

  • Up to one year in county jail, and
  • Fines up to $1,000

For felony offenses, expect longer prison sentences and stiffer fines.

In some unlawful and non-violent drug possession cases, you might qualify for a drug diversion treatment program or drug court. These programs allow you to serve your sentence in a drug treatment program instead of jail or prison.

The Los Angeles County District Attorney's Office does not typically prosecute misdemeanor HS 11350 drug possession cases.

What are the Possible Defenses?

Being charged with possession of a controlled substance does not automatically lead to a conviction. Depending on the case's specifics, several defenses can be raised to challenge the charges. These include, but are not limited to:

  • Lack of Knowledge: You did not know the substance was in your possession. For example, if a person borrows a friend's car and is unaware that drugs are hidden inside, they might argue a lack of knowledge as a defense.
  • Lack of Control: You did not have control over the substance. (For instance, the drugs were found in a shared living space, but you did not have access to the specific area where the drugs were found.)
  • Illegal Search and Seizure: The Fourth Amendment protects individuals from unreasonable searches and seizures. If the evidence against you was obtained through an illegal search or seizure, it could be suppressed, potentially leading to the dismissal of charges.
  • Prescription Defense: A valid defense is to show that the controlled substance in question was legally prescribed.
  • Temporary Possession: In some cases, an individual might argue that they possessed the controlled substance temporarily with the intention of disposing of it or turning it over to authorities. This defense requires credible evidence that the intent was to rid oneself of the drug.

Contact our California criminal defense lawyers for more information. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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