What is the Possession of a Controlled Substance?

Overview of Possession of a Controlled Substance & HS Code 11350 

California Health and Safety Code 11350 HS makes it a misdemeanor to be in the unlawful possession of a controlled substance. This code article is often called “simple possession” or “possession for personal use.” It states: 

...except as otherwise provided in this division, every person who possesses…any controlled substance…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. 

Elements for the Prosecution 

To convict someone of possession of a controlled substance, there are five elements in which the prosecution must prove. They must prove each element beyond a reasonable doubt. 

They are: 

1. the defendant possessed a controlled substance,
2. the accused did not have a prescription for the substance,
3. the defendant knew of the substance’s presence,
4. the defendant knew of the substance’s nature as a controlled substance, and
5. the controlled substance was in a usable amount

Relevant Definitions of the Elements 

A “controlled substance is one whose manufacture, possession, and use is regulated by the government under the United States Controlled Substance Act. Under the U.S. Controlled Substance Act, controlled substances include both illicit street drugs, such as cocaine and heroin. However, the Act also includes prescription medications such as Vicodin and Xanax if possessed without a valid, current prescription. 

It should be noted that neither marijuana nor stimulants are covered by this code section. California Health and Safety Code 11357 HS applies to possession of marijuana. Possession of methamphetamines and other stimulants are covered by Health and Safety Code 11377 HS. 

A person has “possession” over the controlled substance if they have control over it. However, you don’t have to actually be holding the substance to be found in possession of it. For example, you can be in constructive possession of the substance if it is in your storage unit, in your closet, or in the trunk of your car. 

Additionally, to be found guilty of possession of a controlled substance, you must have “knowledge” of two things. They are: 

1. the presence of the controlled substance, and
2. the fact that the substance is indeed a controlled substance 

There must also be a “usable amount” of the controlled substance in order to be convicted of possession of the controlled substance. A “usable amount” means the amount of or quantity of the drug is enough to be used by someone as a controlled substance. 

Examples of Simple Possession 

• Going to a concert with a baggie of cocaine in a backpack or in your pocket 
• Driving to a friend’s house with Vicodin in the glove box when you don’t have a valid Vicodin prescription 
• Walking to the neighborhood park with a bindle of heroin in your pocket
• Taking Adderall to school to study when you don’t have a valid Adderall prescription 
• Baggies of heroin in your storage unit that only you have a key for 

Legal Defenses 

Even if you find yourself arrested for possession of a controlled substance, there may still be some legal defenses you and your attorney can use to help get the case dismissed or lessened. 

A defendant can raise a legal defense to contest a possession charge. A few common defenses to drug charges are that the defendant:

• You did not “possess” a drug 
• You did not have knowledge that the controlled substance was present 
• You have a valid prescription for the substance
• You were arrested after an unlawful search and seizure

Penalties 

Most of the time, possession of a controlled substance is charged as a misdemeanor. 

The maximum sentence is one year in county jail and a fine of up to $1000.00. Instead of jail time, the judge may sentence you to misdemeanor probation instead. 

Misdemeanor probation can be anywhere from one to three years. During this time, the defendant must comply with certain conditions placed upon them by the judge. These conditions can include such as attending counseling, drug treatment, or performing community labor, but this list is not exhaustive. Additionally, if the defendant fails to comply with these conditions, the judge has the right to revoke probation and send the offender to jail.

On the bright side, most first time offenders can get the possession of controlled substance charge dismissed by successfully completing a PC 1000 drug diversion program or drug court, which is an alternative to prosecution. 

Expungement 

It is possible for a person convicted of possession of a controlled substance to have the conviction expunged, regardless of whether they were sentenced to jail time or served probation. 

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