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Orange County Bar Association

Possession of a Controlled Substance

Health and Safety Code Sections 11350 and 11377

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

If you are arrested for possession of a controlled substance you may be charged with Health and Safety Code Sections 11350 or 11377 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.

If you are found in actual possession of the drug or “constructive” possession of the drug you may be found guilty of the offense.  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. In order for the prosecution to prove its case they must show that the person knew the substance was a controlled substance and that there was enough of the drug to constitute a usable amount. The elements of these offenses are 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 as a controlled substance.

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.

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.

Health and Safety Code Sections 11350 and 11377 can be filed as a misdemeanor or a felony. The maximum sentence as a misdemeanor is 1 year in a county jail while the maximum sentence for a felony is three years in state prison.

It should be noted that that for first time drug offenders with little or no criminal record they may be eligible for consideration under Penal Code  Section 1000 (also known as “PC 1000”).  This law permits first time drug possession offenders ( Defendants accused of sales are not eligible) to attend a 4 month drug class, avoid jail completely, then get the case  DISMISSED  with completion of the class and no arrests or convictions for 18 months. This is an ideal way for the first time offender to keep his/her record clean. Mr. Bruzzo has successfully negotiated many cases with the result that the client attended the Penal Code Section 1000 class and had the case dismissed. You may contact him at (714) 547-4636.  The Penal Code Section 1000 class is discussed elsewhere on this web site as well.

Recent changes in the law have also permitted offenders with more then one drug possession offense conviction on their record to attend another program under Penal Code Section 1210 (commonly known as “Prop. 36”) with the result that the person accused avoids jail and gets the matter DISMISSED. However, as opposed to Penal Code Section 1000 discussed above there are many more concerns with regard to eligibility of the Defendant for this program. You should consult Mr. Bruzzo immediately to see if you are eligible for this program.  The  Prop. 36 program is usually at least 1-year long and often times much longer with a very intense curriculum and frequent court appearances to monitor the Defendant’s progress. Generally speaking, with successful completion of the program and 3-years without criminal problems the court will dismiss the case. A skillful attorney can qualify even an individual with multiple drug possession convictions for the program with the result of avoiding jail and getting a dismissal of the new charge.  Mr. Bruzzo has successfully qualified many individuals for this program. You may contact him at (714) 547-4636 to discuss your case. This program is discussed elsewhere on this web site as well.

It should also be noted that if one is accused of forging a prescription for medication [Health and Safety Code Section 11368], a skillful attorney can convince the District Attorney to allow the person to attend the Penal Code 1000 class and earn a dismissal of the charge. Mr. Bruzzo has also managed to get the District Attorney to change a charge of Business and Professions Code Section 4324 to a charge of Health and Safety Code 11368 so that the person could attend the Penal Code 1000 class.

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