What Counts as Drug Possession in California?

In California, if illegal drugs are found on your person or in a location “under your control” (such as your home, car, or work locker), you may be charged with drug possession. Drug offenses do not include marijuana possession, as recreational marijuana use is legal in California. However, even marijuana possession must comply with California’s marijuana laws; possessing an excessive amount may still be illegal.

California classifies illegal drugs into different “schedules” and ranks them based on how strictly they are regulated and controlled. For example, Schedule I drugs like heroin and mescaline are more strictly regulated than Schedule IV drugs like clonazepam. Some drugs are always illegal, while others may require a prescription from a doctor.

To convict you of drug possession, the prosecution must prove that you knew you possessed the drugs and that you had reason to believe they were illegal.

Are Drug Crimes Misdemeanors or Felonies?

Drug crimes may be charged as misdemeanors or felonies depending on several factors. Even misdemeanor drug charges can have serious consequences, while felony charges carry even more severe penalties.

Since the passage of Proposition 47, all simple drug possession charges are considered misdemeanors—unless the defendant has a prior criminal record.

For example, Proposition 47 does not apply to defendants with the following prior convictions:

  • Attempted murder
  • Shooting at a peace officer or firefighter with an automatic weapon
  • Murder
  • Kidnapping or assault with intent to commit a sexual offense
  • Possession of weapons of mass destruction
  • Rape
  • Sexual offenses against a child
  • Sodomy
  • Vehicular manslaughter while intoxicated

Judges may also impose harsher penalties based on the nature of the offense and aggravating factors, including the type and amount of drugs, whether violence was involved, whether there was intent to sell, and the defendant’s criminal history.

Will First-Time Felony Drug Offenders Go to Jail in California?

State prosecutors and judges may be more lenient with first-time offenders, especially if they are minors. However, this is not always the case, as prosecutors sometimes seek to make an example out of a defendant.

Regardless of prior record, felonies can result in up to one year in jail. Therefore, first-time offenders may still face incarceration.

That said, first-time offenders may have a better chance of receiving a lighter sentence. Your criminal defense attorney may be able to negotiate a more lenient plea deal based on your clean record.

Factors that may reduce the risk of incarceration include:

  • Possession of less serious drugs
  • Possession of small quantities
  • No intent to sell
  • No aggravating factors such as violence
  • No prior criminal record
  • Having an experienced criminal defense attorney

What Other Penalties Might First-Time Offenders Face If Convicted?

A misdemeanor drug offense can carry a fine of up to $1,000 and less than one year in jail.

If convicted of a felony drug offense, you will be classified as a felon. In addition to fines and jail time, you may face other consequences. These include significant challenges when seeking housing or employment. During incarceration or parole, you may lose your right to vote, serve on a jury, or join the military (and may lose veterans’ benefits), as well as your right to own a firearm in California.

What Is a Drug Diversion Program?

Proposition 47 emphasizes treatment over punishment for drug users. California offers a Drug Diversion Program aimed at helping individuals overcome drug and/or alcohol abuse and dependency.

Participation in the program requires the defendant to admit to drug possession. During your participation, sentencing will be delayed. If you successfully complete the program and meet all other established conditions, your drug charge will be dismissed. This means the drug charge will not appear on future job interviews or housing applications.

First-time offenders are typically eligible for California’s Drug Diversion Program.

Can a Criminal Defense Lawyer Help Your Case?

Based on the facts of your case, an experienced drug crimes attorney may be able to pursue several criminal defense strategies, including:

  • The substance is not a Schedule I or II drug
  • The illegal drugs belonged to someone else
  • Police conducted an improper or illegal search and seizure
  • You had no intent to sell the drugs
  • You had a valid prescription
  • You possessed only a small amount of illegal drugs
  • You were unaware you had the drugs

Schedule a Case Evaluation With a Criminal Defense Lawyer Today

If you’ve been charged with a drug crime and it’s your first offense, you may have several legal options to build a strong defense. The Law Office of Daniel Deng has represented thousands of clients in criminal and personal injury cases. As your legal advocate, we provide you with a strategic defense and work toward the best outcome for your case.

Call 626-280-6000 to schedule a consultation.