Possession of a Controlled Substance – California Health & Safety Code 11350 HS

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California Health & Safety Code 11350 HS

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What is California Health & Safety Code 11350 HS?

California Health & Safety Code 11350 prohibits possessing specific controlled substances regulated by the government under the United States "Controlled Substances Act" unless you have a valid prescription.
Examples of these controlled substances (drugs) include, but are not limited to:  heroin, cocaine, peyote, ecstasy, gamma-hydroxybutyric acid, ketamine, methamphetamines, marijuana, and other various hallucinogenic drugs. Examples of prescription drugs which must have proof of prescription include, Vicodin and Codeine.

In order to successfully prosecute you for having possession of a controlled substance the prosecutor must prove the following:

1.       You had control over the drug, or had the right to have control over the drug. The prosecutor can prove you had possession of the drug in one of three ways:                 joint possession, constructive possession or actual possession:
  • Joint Possession – Occurs when you and at least one other individual share either constructive or actual possession. An example of shared actual possession would occur if both you and a friend were sharing a needle that contains the controlled substance. An example of shared constructive possession would occur if the controlled substance was found in a vehicle you regularly share with your friend, spouse, or roommate (as long as both people know it is there and consent to it remaining there).
  • Constructive Possession - The controlled substance/drug was not on your person, but was discovered in an area over which you had control. This control could be through another person(s). For example, controlled substances may be found in your personal locker at work – they were not directly on your person, but they are in an area over which you have direct control.
  • Actual Possession - The controlled substance/drug is on your person. It may be in your pocket, in your wallet, in an orifice, in a tooth filling etc.  If you ingested the drug prior to being caught and you are still under the influence of the drug at the time of arrest, you can be charged with actual possession.

KEEP IN MIND: Having access to a controlled substance or being near the drugs, or near someone who had drugs on their person, is not by itself sufficient evidence to prove possession. Knowledge is an essential factor in proving actual/joint/constructive possession of a controlled substance

2.     You knew of the drug’s presence
         ------>You may be acquitted of the charges if you did not know the drugs were present

3.     You knew it was considered a controlled substance
        ------->You may be acquitted of the charges if you did not know what the drugs were. For example, you may have been under the impression that the pills given                        to you by a friend were “over-the-counter” drugs.

4.     The drug existed in sufficient quantity to be used as a controlled substance.
        ------->This essentially means that drug residue, or traces of the drug are insufficient to support a conviction under 11350 HS. It does not have to be a sufficient                        quantity to provide the sought after narcotic effect. It merely must be a sufficient quantity to be consumable in some way.

What defenses are available to me if I am charged with possession of a controlled substance under California Health & Safety Code 11350 hs?

Examples of defense include, but are not limited to the following:

  1. You had a valid prescription for the drug. This means that your prescription was written out for you specifically, and you were using it consistent with the prescribed manner.  This defense will not be available to you if you had a fake or fraudulent prescription, possess quantities of the drug which exceed the quantities permitted by the prescription, possession of drugs which were legally prescribed to someone other than yourself.
  2. The officer arrested you even though you didn’t have actual or constructive possession of a controlled substance.  It sounds ridiculous, but it happens. Sometimes assumptions are made in the moment – assumptions that if an individual sitting in the same car as you had drugs, you must have known about it. 
  3. Temporary Possession can be used as a valid legal defense to 11350 HS if you temporarily possessed the drugs in order to destroy or dispose of them to terminate someone else’s unlawful possession and you did not possess the drugs with the intent of preventing their imminent seizure by law enforcement.  This defense will not apply if you are destroying evidence of your possession of the drugs because you know you are about to be caught by the police officers pulling you over for a traffic stop or knocking down your door with a search warrant. 
  4. You really did not know the drugs where in your presence and/or even if you did, you had no idea they were an illegal controlled substance. But, this defense will be harder to use to prove if you have a prior drug record, have a history of running from the cops ( or were caught while running from the cops), or if you refuse to take a drug test.
  5. The drugs were found as a result of an illegal search and seizure.  For example, the drugs may have been found during an illegal search where the officer either did not have a valid search warrant or because s/he searched beyond the scope of the warrant. Another scenario resulting in an illegal search and seizure would be if the officer used excessive force to seize the illegal narcotics. Additionally, if the arrest itself was based on illegal grounds, such as racial profiling, then the “fruit” of that arrest may be dismissed if your attorney files a motion to suppress evidence.

What are the penalties associated with illegal possession of a controlled substance under hs 11350?

Violations of 11350HS are typically charged as a misdemeanor.

If you are convicted of this offense as a misdemeanor, you could spend up to one (1) year in county jail and/or pay a fine up to $1,000.

However, if you have been convicted of some serious felonies, including murder, sexually violent offenses, gross vehicular manslaughter while intoxicated, sex crimes against a child under the age of 14, or a sex crime which requires you to register as a sex offender in California, your penalties will be harsher. You will spend anywhere between sixteen months to three years in prison.

If you were convicted of violating 11350 HS prior to November 2014, you may have been convicted of a felony. The passing of Proposition 47 in November 2014 now provides you will the opportunity to petition the court to reduce your sentence to a misdemeanor. You should not delay in petitioning for your sentence to be reduced - contact Vincent Oliver Law immediately for a free consultation about your legal situation.
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What drug diversion programs are available to me?

There are three diversion programs available to reduce or get rid of jail time associated with possession of a controlled substance under California HS 11350.  More information about these programs can be found at the links below:

Proposition 36 - Substance Abuse and Crime Prevention Act of 2000

Drug Court

Penal Code 1000 DEJ

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California Health & Safety Code 11350 HS

11350. (a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code. 

(b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code. 

(c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant' s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. 

(d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine. 

(e) It is not unlawful for a person other than the prescription holder to possess a controlled substance described in subdivision (a) if both of the following apply: (1) The possession of the controlled substance is at the direction or with the express authorization of the prescription holder. (2) The sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner. 

(f) This section does not permit the use of a controlled substance by a person other than the prescription holder or permit the distribution or sale of a controlled substance that is otherwise inconsistent with the prescription. 

11350. (a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code. 

(b) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a), the judge may, in addition to any punishment provided for pursuant to subdivision (a), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. 

(c) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.
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