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Orange County Bar Association

Possession for Sale of a Controlled Substance

Health and Safety Code Sections 11351 and 11378

Orange County Lawyer William W. Bruzzo at (714) 547-4636.

If you are arrested for possession of a controlled substance for sale you may be charged with Health and Safety Code Sections 11351 or 11378 depending on what type of controlled substance you have.

Notably, while these charges usually concern “street drugs” like Cocaine and Methamphetamine they can also apply to substances commonly thought of as medications.

The elements of possession of a controlled substance for sale is as follows:

  1. A person exercised control  over or the right to control an amount of the drug;
  2. That the person knew of its presence;
  3. That person knew of its nature as a controlled substance; and
  4. The substance was in an amount sufficient  to be used for sale or consumption as a controlled substance; and
  5. That person [possessed] [or] [purchased] the controlled substance with the specific intent to sell the same.

If you are found in actual possession of the drug or “constructive” possession of the drug you may be found guilty of the offenses above.  Constructive possession means that the drug may not be on your person but you knowingly exercise control over or the right to control the drug, either directly or through another person or persons.

The first thing every good criminal defense attorney should do in a case involving controlled substances is to look and see whether the way in which the police realized the Defendant possessed the substance was legal under the 4th amendment. This area of criminal law is called “search and seizure” and it is very important to consider this aspect of every controlled substance case. For example, if the substance was found on the Defendant while he was driving, was he/she legally stopped by the police officer? Did the stop occur because of a legitimate traffic infraction or was it because of the Defendant’s race? Or was the stop because the officer had a hunch since the Defendant seemed out place in that particular neighborhood? If the reason for the stop/detention of the Defendant was not legal under the fourth amendment then the attorney can move to suppress the evidence because of the 4th amendment violation under Penal Code Section 1538.5.  If the court grants this motion then the case can be DISMISSED. Thus it is very important for the attorney to explore this aspect of the case with the client.

Except for Marijuana, there is no bright line definition for what quantity of a certain controlled substance constitutes an amount sufficient to be considered a saleable amount. Health and Safety Code Section 11357 basically puts 28.5 grams as a personal use amount for marijuana.

In order to prove sales of a drug or the intent to sell, the prosecutor will often put on a police officer with a background in narcotics to act as an “expert” in drug sales. Often times the officer will rely on circumstantial evidence in supporting his assertion that the controlled substance was possessed for the purpose of sales. This evidence can include that the officer simply believes based on his experience that the quantity of the drug is just too much for personal use. He may also rely on certain other indicators: (1) the presence of a scale when the Defendant was arrested; (2) whether the  drug was divided in separate baggies; (3) whether the Defendant was found with “pay/owe” sheets, which are used to keep track of who owes him/her money for the sales; (4) a pager; (5) a cell phone. The presence of all or some of these items may cause the officer to arrive at the opinion that the defendant was involved in the sale of a controlled substance.

The police officer can be countered with a defense expert who can explain to the court or a jury the reasons why the amount of the substance and other factors do not necessarily show that sales of a controlled substance was occurring.

Often times when the controlled substance is found under the seat of a vehicle the prosecutor will argue that the driver/owner of the vehicle must have known of the presence of the substance simply because they are the owner/driver of the vehicle and even though there were other people in the car. However, a skillful attorney can counter that argument by explaining to the court or the jury if necessary, how easy it is for a passenger to stash a controlled substance under the seat of a vehicle without the driver/owner being aware.

All drug sales charges are filed as felonies. Health and Safety Code Section 11351 carries a maximum incarceration time of 4 years in state prison while Health and Safety Code Section 11378 carries a maximum of 3 years in state prison. Beware, there can be sentence enhancements when large amounts of controlled substances are found.

Generally speaking, there are no programs available for persons accused of possession of controlled substances for sale. However a skillful attorney can, depending on the facts of the case, convince the District Attorney to amend the charge to one that permits the defendant to attend a program. Otherwise, the Defense can attack the prosecution’s assertion that the amount of the substance and other so called indicators necessarily mean that sales or the intent to sell was actually occurring. Mr. Bruzzo has successfully represented many persons accused of possession with intent to sell.

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