Possession for Sale of a Controlled Substance
Health and Safety Code Sections 11351 and 11378
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.
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:
- A person exercised control over or the right to control an amount of the drug;
- That the person knew of its presence;
- That person knew of its nature as a controlled substance; and
- The substance was in an amount sufficient to be used for sale or consumption as a controlled substance; and
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.
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.
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.
Contact Orange County defense attorney Katie Walsh if you need help with Possession for Sale of a Controlled Substance or any other criminal matter.