What Counts as Drug Possession in California?
In California, you could be charged with drug possession if you have an illegal controlled substance on your person or ‘under your control’ (in your home, car, work locker, etc.). Drug offenses do not apply to the possession of marijuana, as the recreational use of marijuana is legal in California. However, even the possession of marijuana must follow the state’s marijuana laws; having too much marijuana in your possession can be illegal.
California defines different ‘schedules’ of controlled substances, ranking them by how they’re policed and outlawed. For example, Schedule I drugs like heroin and mescaline are more intensely policed than Schedule IV drugs like clonazepam. Some drugs are illegal in all circumstances. Other drugs may require a valid prescription from a doctor.
For the prosecution to prove drug possession, they have to prove that you were aware you had the drugs and that it was reasonable to believe you knew the drugs were illegal.
What Makes a Drug Offense a Misdemeanor or a Felony?
The decision of whether drug crimes are charged as misdemeanors or felonies depends on several factors. The consequences for a misdemeanor drug charge can be extreme, but the consequences for felony drug charges are even more serious.
Since the passing of Proposition 47, all drug possession charges are considered misdemeanor crimes unless the accused has certain’ super strikes’ against them.
For example, Proposition 47 does not apply to defendants with a history of:
- Attempted murder.
- Firing an automatic weapon at a peace officer or firefighter.
- Kidnapping or assault with the attempt to violate.
- Possession of a weapon of mass destruction.
- Sexual assault of a child.
- Vehicular manslaughter while intoxicated.
The judge may also charge the drug offender with harsher penalties based on aggravating factors related to the crime. These factors include the type of drug, the amount of drug within the accused’s possession, whether violence was involved in the crime, if there was an intent to sell, and the defendant’s prior criminal record.
Do First-Time Felony Offenders Get Jail Time for Drug Offenses in California?
State prosecutors and judges are sometimes more forgiving to first-time offenders, especially if the offender is a minor. However, that is not always the case, as sometimes the prosecution may seek to make an example of the accused.
A felony offense is punishable by up to a year in prison, regardless of previous crimes. So, yes, a first-time drug offense could result in jail time.
However, a first-time offender may be graced with more leniency when arguing for lighter sentencing. Your drug crime lawyer could say that, for someone with no criminal record, you deserve a slightly more forgiving plea bargain.
Factors that may reduce the risk of a jail sentence include:
- Possession was for a less serious drug.
- A small amount of the drug in possession.
- No intent to sell.
- No aggravating factors like violence were connected to the crime.
- No criminal history.
- An experienced criminal defense lawyer.
What Other Penalties Could a First-Time Offender Face if Convicted?
Drug offense misdemeanors are punishable with a fine of up to $1,000 and up to one year in jail.
If convicted of a felony drug crime, you will be considered a felon. In addition to the fines and jail time, you will also face other consequences. You will encounter intense challenges when seeking housing or employment. You will lose your right to vote while serving time or on parole. You will lose your right to serve in jury duty or the military (and may lose military benefits). And you will lose your right to own and possess a firearm in the state of California.
What is a Drug Diversion Program?
Proposition 47 favors the treatment of drug users over their punishment. California has a Drug Diversion Program, which is meant to rehabilitate drug users’ abuse of and dependency on drugs and/or alcohol.
The Diversion Program requires that the accused plead guilty to drug possession. Sentencing will then be delayed as you go through the Program. When you successfully finish the Program and meet all other set requirements, your drug crime case will be dismissed. This means that your drug charges will not show up on future employment interviews or housing applications.
First-time offenders usually qualify for California’s Drug Diversion Program.
Can a Criminal Defense Attorney Help Your Case?
Depending upon the facts of your case, an experienced drug crime attorney may have several avenues for building a criminal defense, including:
- The drug was not a Schedule I or Schedule II drug.
- The illegal drugs belonged to another person.
- The search and seizure by the police was improperly or illegally conducted.
- You had no intention of selling drugs.
- You have a valid prescription for the drug.
- You only possessed a small amount of the illegal drug.
- You were unaware that you possessed the drugs.
Schedule a Free Case Evaluation with an Experienced Drug Crime Lawyer Today
If you’ve been accused of a drug offense and are a first-time offender, you may have several legal options for building a solid criminal defense. The attorneys of the Law Office of Daniel Deng have proudly served thousands of clients in criminal and personal injury law. As your legal representatives, we would provide our extensive experience with respect and compassion while seeking the most optimal outcome for your case.
To schedule a free consultation, please contact our Rosemead, California, law offices at 626-280-6000.