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You've Been Charged with Narcotics Possession - What Now?

Being charged and convicted with possession of a controlled substance can negatively impact your entire future. Having the conviction on your record will undoubtedly result in decreased chances obtaining gainful employment, admission to schools, obtaining loans, and much more. Depending on the substance, the law will vary – but it’s important to understand how these laws work so that you can properly vet attorneys. You will need an attorney who is well versed in the nuances of drug charges, and one who will not be afraid to aggressively pursue an entire dismissal.

What Laws Will Come Into Play?

Health and Safety Code (HSC) 11350 covers controlled substances such as prescription medication, heroin, cocaine and other psychedelics. HSC 11350 does not govern charges for stimulants and marijuana. Methamphetamines, cocaine, and marijuana all fall within the purview of HSC 11357. It is important to note that HSC 11350 covers legal and illegal drugs. For example, if you have a prescription for OxyContin, then possession of that drug is lawful. Possession of OxyContin thus becomes unlawful when you are in possession without a prescription. Violations of HSC are typically filed as misdemeanors, and they carry a sentence of up to one year in county jail and/or a fine up to $1,000. However, violations of HSC 11350 and 11357 are known as “wobblers.” This means that in some circumstances, the district attorney may file the charges as a felony. If you are convicted of a felony violation of the Health and Safety Code, your sentence may be much harsher. You may be sentenced up to three years in county jail. In deciding whether to file as a misdemeanor or felony, the district attorney will consider your criminal background. Prior convictions for similar offense may demonstrate the defendant has neither learned her lesson nor been rehabilitated – making it more likely for the district attorney to file as a felony. In addition, prior convictions for sex crimes are aggravating factors.

What Will the Prosecutor Have to Prove, and What Are My Defenses?

To secure a conviction for narcotics possession, the prosecutor must prove beyond a reasonable doubt that (1) you exercised control over a controlled substance; (2) you knew of the controlled substance’s presence; (3) you knew it was a controlled substance; and (4) the substance was in a usable quantity. A good criminal defense attorney will first argue that the prosecution has failed to meet its burden as to one or all of the elements. In addition, a good criminal defense attorney will make the prosecution work hard to prove those elements by raising gaps and weaknesses in the prosecution’s case for each element. This route can be the fastest way to secure a favorable decision for the client, but there are additional available defenses to possession charges.

Obviously, having a prescription for the controlled substance is a defense to charges of possession. As long as you possessed the drug consistent with the purpose of the prescription, you will not be convicted. Many defenses turn on possession – in other words, a good criminal defense attorney will argue that you were neither in constructive or actual possession of the drugs (see following section). Temporary possession and lack of knowledge are also available defenses. If you were not aware of the presence of the drugs, or if you did not know possession of the drugs was illegal, you cannot be convicted.

Finally, one defense that all criminal defense attorneys love is challenging that the initial stop or arrest was unconstitutional. In criminal law, if a stop or search is not constitutional, no subsequent evidence (or fruit of the illegal stop or search) can be used against the defendant. A good criminal defense attorney will argue that the stop or search was unconstitutional, thereby blocking the drugs from even coming into evidence. This is a great way to destroy the prosecution’s case, as a possession charge cannot stand without admitting the drugs or the evidence obtained after the stop and/or search.

Constructive vs. Actual Possession

At first glance, you may think that “possession” simply means that the defendant had a controlled substance in her possession. However, in criminal law, there are several scenarios that may fall under the definition of possession. First, there is actual possession. Actual possession refers to direct control over the substance. In other words, the defendant was in physical control of the illegal substance – whether it was on her person or in her purse while she wears it. Constructive possession occurs when the drugs are not found in the defendant’s physical control, but are found in an area in which the defendant has control over. This occurs, for example, when drugs are found in a purse in which no one has physical control of. The purse could be on a sofa or hanging on a coatrack. If drugs are found within the purse, then the owner of that purse would be in constructive possession of the drugs due to the fact that she exercises control over it – even though she is not wearing or holding the purse.

Finding the Right Attorney

Choosing the right attorney when you have been charged with possession of a controlled substance is key. Many attorneys will not attempt to have the charges completely thrown out – however, that should always be the ultimate goal. Having proper representation early on can save you significant money in the future by avoiding post-conviction relief like an expungement or trying to have probation terminated early.