Nearly half of California’s prison population is in jail for drug offenses.It’s evidence that the state is aggressively fighting the war on drugs.
Because of that battle, even those convicted of a relatively minor drug offense may find themselves incarcerated.
This means that any drug charge, no matter how minor, must be taken seriously with the strongest legal defense secured early on.
Jail time, prison time, huge fines and living the rest of your life with a criminal record can seriously impact the rest of your life.
Add California’s harsh drug sentencing guidelines to the “three-strikes-and-you’re-out” policy, and even a recreational user could find him or herself facing serious time behind bars following a drug conviction.
San Diego Drug Charges
San Diego’s close proximity to the border creates a much tougher stance on drug charges.
This means the type of drug, the amount found, and whether you were using, distributing, or manufacturing, are factors the District Attorney will consider when determining which charges to file.
Since many drug crimes are considered wobblers, the D.A. will make a determination whether to charge you with a felony or a misdemeanor.
Unfortunately in many cases, the prosecutor will choose felony charges.
Specific California Drug Crimes
Drug possession in San Diego falls under Health and Safety Code § 11350. Marijuana possession is primarily a misdemeanor drug crime and possession of marijuana for an approved medical purpose is excluded from drug possession charges. Possession of GHB, ketamine, crack, cocaine, and prescription drugs with no prescription such as Vicodin, could be charged as either a misdemeanor or felony, depending on the circumstances surrounding your arrest.
Under Health and Safety Code § 11377, methamphetamine (crystal meth) possession is also criminalized and is likely to be charged as a misdemeanor.
That being said, just a simple drug possession charge can be prosecuted as an infraction, misdemeanor, felony, or wobbler based on the amount of drug in your possession, the type of drug, and your prior criminal record.
The charges that are ultimately filed against you will have a significant impact on sentencing and the consequences you face.
Possession can occur in three different ways. Actual possession means you had the drug on your person or exercised direct control over it.
Constructive possession means you had the right to control the drug, even if it was not in your possession (i.e. you gave your drugs to someone else to hold for you).
Joint possession occurs when you purchase an illegal drug with another person, with the intent to share the drug.
Drug Possession with Intent to Sell
Health and Safety Code § 11351 makes it a crime to possess illegal drugs other than methamphetamine (or prescription drugs without a prescription) with an intention of selling those drugs to others. Health and Safety Code § 11378 makes it illegal to possess methamphetamine with the intention of selling the methamphetamine to others.
The rules for drug possession with intent to sell are different; wiretaps are admissible in court, and the judge will allow witness testimony, which speaks to suspicious activity at your home.
Possession with the intent to sell is a felony offense and bring more serious penalties than simple possession.
A conviction for possession with intent to sell requires that the person charged was aware of the illegal drug, knew it was illegal, possessed sufficient amounts of the drug to indicate the intent to sell—and intended to sell the drugs.
Items such as baggies, weapons, or large amounts of cash could influence how the crime is charged or the sentencing.
Those who are transporting, importing, selling, furnishing, administering or giving away illegal drugs while crossing state lines to do so, (including methamphetamine) may be charged with drug trafficking.
Charges of drug trafficking can result in severe, life-changing consequences.
The penalties depend on the schedule of the drug, the quantity transported, and any prior criminal record as well as the intentions for the drugs in question.
Drug trafficking foe meth falls under Health and Safety Codes § 11352 and 11379.
Personal possession is not a requirement for drug trafficking charges, rather the drugs could be found in a vehicle.
Manufacturing a Controlled Substance
Most often, methamphetamine labs and marijuana cultivation will fall under the category of manufacturing a controlled substance (Health and Safety Code § 113796.6)
The term “manufacturing” includes propagation, conversion, compounding, preparation, production or processing.
Any time a controlled substance is manufactured without authorization, it is a crime, and the person may additionally be charged with permitting the unlawful use of a building.
Penalties for Drug Crimes in San Diego
Penalties for drug possession will depend heavily on the schedule of drug involved.
Schedule I drugs are considered to have the highest dangers, with a significant threat of addiction and no valid medical use.
Drugs, which fall under Schedule I include:
- Marijuana (In April 2015, a federal judge in California declined to remove marijuana from this list of most dangerous drugs.)
Schedule II drugs have an elevated risk of abuse and/or addiction, but might possibly have a valid medical use as well. Schedule II drugs include:
Schedule III drugs are not as risky as Schedule II drugs, but are still considered to have at least a moderate risk of abuse. Schedule III drugs include:
- Anabolic steroids
Schedule IV drugs are considered to have only a slight risk of abuse or dependency and have a number of accepted medical uses. Schedule IV drugs include:
- Prescription drugs
Schedule V drugs are those such as Tylenol with Codeine, with a relatively minor risk of dependency.
Possession of a drug for personal use, will be charged according to the schedule of drug as well as the amount.
- Possession could be charged as low as an infraction, with no jail time and a $100 fine, or as high as a misdemeanor with up to six months in jail and up to a $500 fine.
- Possession with intent to distribute is a felony charge, which could bring from 16 months to three years’ incarceration in the event of a conviction.
- Sale or delivery of an illegal drug is a felony, and the penalties depend on the age of the seller as well as the age of who the drugs were sold to.
Penalties range from two years to seven years’ imprisonment.
- Cultivation of a drug (any amount) will be charged as a felony, and can bring from 16 months to three years’ incarceration in the event of a conviction.
- The chemical manufacture of hash and concentrates can result in a sentence of 3-7 years in prison and a fine as large as $50,000.
- The unauthorized manufacture of hash and concentrates can result in 16 months-3 years’ incarceration and up to a $500 fine.
- Vehicles and other property may be seized for controlled substance violations and there may be a suspension of driving privileges.
- Using a minor in the unlawful sale or transport of marijuana is a Felony punishable by 3-7 years imprisonment.
- A gift or mere transportation of 28.5 grams or less of marijuana will be charged as a misdemeanor, and is punishable by a fine as large as $100. Production of identification and the signing of a written promise to appear in court is sufficient to be released for this misdemeanor crime.
- While there is no penalty for the simple possession of marijuana paraphernalia, delivery of marijuana paraphernalia by an individual 18 or older to a minor at least three years his or her junior is a misdemeanor. Penalties could include up to a year imprisonment and/or a fine as large as $1,000.
- Under California Penal Code § 1000, probation may be available for some marijuana offenses, however the offender must participate in education or treatment as determined by the court.
Potential Defenses to Your Drug Charges
The defense used in your particular case will depend on the specific circumstances, however some of the more commonly used defenses include:
- Failure on the part of the police to comply with legal search and seizure rules;
- An argument that the drugs either did not belong to you or you had no knowledge they were in your home or vehicle;
- Mistakes made once the drugs are in the crime lab;
- Missing drugs (seized drugs can be transferred several times before ending up in an evidence locker);
- The drugs were planted (very difficult to prove, since an officer’s word carries significant weight), and
The Impact of Prop 47 – the Safe Neighborhoods and Schools Act
Proposition 47, which went into effect on November 5, 2014, mandates misdemeanors rather than felonies for specific, less-serious, nonviolent crimes—but the Act only applies to certain offenders who have no prior convictions for certain violent or serious crimes.
The required misdemeanor sentencing of Proposition 47 applies to Health and Safety Codes 11350, 11357(a) and 11377 (Possession of a Controlled Substance and Possession of Concentrated Cannabis).
Those who are already serving sentences for drug possession crimes may also be able to take advantage of Proposition 47, as eligible petitioners may ask for a sentence reduction.
A thorough review of the criminal history of the person who is petitioning, as well as a risk assessment to ensure the individual poses no threat to public safety will be necessary prior to re-sentencing.
Petitions must be filed within three years of the time Proposition 47 went into effect.