Possession of a Controlled Substance
[Health and Safety Code Sections 11350 and 11377]

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.

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.

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.

Offenders with more then one drug possession offense conviction on their record to may 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 Ms. Walsh 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.


Contact Orange County criminal defense attorney Katie Walsh for help with possession of a controlled substance.

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