Navigating the war on narcotics and controlled substances is frustrating for any person. New and potentially invasive methods used by police to investigate drug offenses, coupled with zealous prosecution, can adversely affect you and disrupt your legal defense strategies. The penalties of a conviction are severe and include probation, incarceration, fines, and stigma. That is why it is essential to engage a knowledgeable lawyer who can review the case facts, evidence, listen to your side of the story, and discuss the available legal options. San Diego Criminal Defense Lawyer is a seasoned drug defense attorney with many years of representing thousands of clients accused of different drug crimes and can protect your constitutional rights.

An Overview of Drug Crimes

Generally, drug offenses involve breaking state or federal law. The offenses cover many crimes involving controlled substances, like manufacturing, distribution, trafficking, sale, possession, prescription forgery, and fraud. Also, drug crimes include conspiracies and attempts to engage in any of these conduct. In federal law, engagement in an ongoing criminal business also exposes a person to criminal accountability. The crimes are precisely defined. The prosecutor should also establish specific elements of the crime before the suspect is found guilty and convicted.

More often than not, the criminal cases involve whether the law enforcement obtained the evidence properly. Evidence acquired in violation of your legal rights is not admissible in court under the 4th Amendment to the U.S. Constitution that protects you from unreasonable searches and seizures.

Federal Controlled Substance Act

In 1970, Congress passed the Controlled Substances Act. The act outlines enforcement instruments, regulatory requirements, and consequences or penalties for any unauthorized distribution, possession, or manufacture of controlled substances.

Controlled substances are classified into five (5) categories based on their addiction potential and abuse compared to the therapeutic value. These categories include:

  • Schedule I drugs do not have any accepted medical use and are more likely to be abused. They include marijuana, LSD, and heroin.
  • Schedule II drugs have accepted medical uses. They are more likely to cause dependence and abuse. They include PCP, methadone, methamphetamine, and cocaine.
  • Schedule III drugs have accepted medical uses and are less likely to cause abuse and dependency.
  • Schedule IV drugs are less likely to result in abuse or dependency than Schedule V drugs and can be used in medical treatments. They include Xanax, tranquilizers, sedatives, and Valium.
  • Schedule V drugs have a limited likelihood for dependency, low abuse potential and are used in medical treatments. Cough medication with codeine falls into this category.

Schedule I involves the most severe penalties, while Schedule V attracts the least severe. Drug crimes lead to administrative and criminal consequences, including incarceration, property forfeiture, probations, and enrollment in court-ordered drug treatment programs, depending on the case circumstances. Some of the aggravating factors include:

  • The defendant's criminal record
  • Nature of the drug
  • Whether a minor was involved
  • Activity near a protected zone like a school or park
  • Involvement of firearm
  • Quantity of the drug

A drug charge can have severe penalties, and hiring an experienced criminal defense lawyer is imperative. In a confidential, free initial consultation, San Diego Criminal Defense Lawyer will listen to you, analyze your case, and discuss the available legal options.

Common drug offenses include the following:

Possession of a Controlled Substance

HS 11350 makes it an offense to possess a controlled substance without a valid prescription. Before sentencing you for the crime, the prosecution should prove that:

  • The accused illegally possessed a controlled substance
  • They knew of the presence
  • They knew the drug was a controlled substance
  • The narcotic was in usable quantity

While many individuals assume that a defendant should be holding the controlled substance to be prosecuted with HS 11350, the prosecution can charge them with possession in three different ways, namely:

  • Actual possession — The narcotic is on the defendant's person like in the pocket. It is what many people associate with possession.
  • Constructive possession— The prosecutor can charge you if the drugs are somewhere you can easily access them, like in your home or car. In this case, the prosecutor must establish that the drugs are within your control and you can easily retrieve them.
  • Joint possession — Generally, joint possession happens when controlled substances are in shared areas and all parties have constructive possession. If you and your spouse purchased the drugs together, you have joint possession.

Violation of this statute is charged as a misdemeanor punishable by the following maximum penalties:

  • One thousand dollars in fine
  • A one-year jail sentence

Nevertheless, if the defendant has previously been convicted of a serious felony or a sex crime, unlawful possession of narcotics can be a felony. The conviction attracts three years in jail.

The crime also has negative firearm rights and immigration consequences.

Fighting HS 11350 Charge

There are numerous ways that your seasoned drug defense attorney can assist you in fighting your criminal charges or even have the criminal charges dismissed. Common legal defense approaches include claiming that:

  • Your prescription was valid
  • The substance was not a controlled substance
  • You did not know of the existence of the drug
  • The drugs belonged to somebody else
  • Illegal searches and seizures
  • The narcotics were not under your control

Since every criminal case is unique, your attorney can review your case’s evidence and facts to determine the most effective defense option.

Under the Influence of a Controlled Substance

Health and Safety Code 11550 is the statute that makes it illegal to be under the influence of drugs.

Before finding you guilty of the offense, the prosecution must demonstrate that:

  • The accused intentionally used the narcotic, and
  • They were drunk.

The prosecutor can use many forms of evidence to prove you guilty, including:

  • The arresting police officer's testimony
  • Chemical test results
  • Testimony from the drug recognition expert officer

As far as "under the influence" is concerned, the term means the narcotic affected your nervous system, mental condition, or physical condition. The statute only requires that you are under the influence in any detectable way; misbehavior or impairment is not necessary to demonstrate the charge.

Violating this statute is prosecuted as a misdemeanor that carries one year in jail. Sometimes, the defendant qualifies for a drug diversion program. The program involves drug rehabilitation and drug counseling. It allows the accused to serve their sentence in a drug treatment program instead of incarceration.

Driving While Addicted to Drugs

You violate VC 23152(c) when you drive your vehicle while addicted to a drug. It is not necessarily that you are drunk after taking the drug to be found guilty of this crime.

The crime applies to both illegal drugs and prescription drugs.

An individual is deemed an addict to a drug per VC 23152(c) if all the statements below are correct:

  • The individual has become physically dependent on the narcotic and suffers withdrawal symptoms when the person is deprived of the drug
  • The person has developed a tolerance to the controlled substance's effects and requires more potent and larger doses
  • The individual is emotionally dependent on the narcotic and experiences a compulsive need to continue using it

Penalties and Consequences of Vehicle Code 23152 (c)

Generally, first, second, and third DUI crimes are misdemeanors. On the other hand, subsequent crimes are felonies.

If charged with driving while addicted for the first time, you will face penalties like:

  • Up to three of informal DUI probation
  • Fines of at least $390
  • Six months in jail
  • Suspension of your driver's license for six months
  • Enrollment in DUI school

Typically, penalties for subsequent 23152(c) crimes include probation, fines, longer license suspension, DUI school, and incarceration time that increases with every following drunk driving crime.

Fighting VC 23152(c) Charges

Common defenses that your defense lawyer can use to fight your charges include:

  • You are not addicted to the drug
  • You were enrolled in a drug treatment program at the time of the arrest

Possession of Marijuana (HS 11357)

The 2016 voter initiative Proposition 64 legalized adults above 21 years to possess small quantities of bhang for recreational and personal use.

Nevertheless, that does not imply that you cannot face a criminal charge or penalties for simple possession. HS 11357 still bans the following:

Possession of Marijuana that Exceeds One Ounce

The law prohibits possession of at least eight grams of concentrated cannabis or marijuana that exceeds 28.5 grams.

It is charged as a misdemeanor, punishable by fines of $500 and six months in jail. However, if a minor violates the statute, they will face an infraction. They will be required to engage in community service and enroll in drug counseling.

Possession of Concentrated Cannabis or Marijuana by a Child

It is a crime for a person below 21 to possess any quantity of concentrated cannabis or marijuana other than under California's medical marijuana law.

Below are penalties for persons below 21 who violate the law:

  • A maximum fine of $100 for a person at least eighteen years
  • First-time offenders below 18 will face four hours of counseling and perform ten hours of community service
  • Defendants below 18 years with a previous conviction will attend six hours of counseling and perform twenty hours of community service.

Possession of Marijuana on the Grounds of a School

Under HS 11357(c), it is a criminal offense to possess bhang inside or on the grounds of a K-12 after-school program or while the institution is open during school hours.

If prosecuted as an adult, you will face a misdemeanor that carries $250 in fine. On the other hand, a minor will face an infraction that attracts drug treatment and community service.

You can fight the criminal charges by arguing that:

  • The law enforcers discovered the pot during an illegal search and seizure
  • You did not possess the controlled substance
  • You were not aware that the narcotic you possessed was marijuana

Possession of Marijuana for Sale

HS 11359 makes it an offense to possess bhang for sale except as the law provides. To be found guilty of the crime, the prosecution must establish the following elements of the crime:

  • You possessed a controlled substance
  • You were aware of its existence
  • You knew the substance was a controlled substance
  • You wanted to sell it illegally without the necessary marijuana sales license
  • The narcotic was bhang
  • You possessed a usable quantity

Defining Selling

As far as HS 11359 is concerned, selling means exchanging marijuana for anything valuable, services, or money. It can be sex, other narcotics, paying a debt, or an apartment.

Sometimes the intention to sell the controlled substance can be proved using direct evidence that includes the following:

  • A law enforcer seeing you exchanging pot for money
  • Your statement

The prosecutor can also prove intent using circumstantial evidence like:

  • The quantity of the narcotic above a few ounces
  • Bhang found on you in spaces where black market bhang or controlled substance sales often occur
  • Packaging manner
  • Presence of weapons or money with the drug
  • An expert's opinion that you held bhang for sale

Penalties for Violating HS 11359

Typically, violating the statute in question is a misdemeanor. It is punishable by six months and $500 in fines.

Nevertheless, you can face felony penalties if one of the following is correct:

  • You have a previous conviction for a serious violent felony like murder, sex crime against a minor below 14, or a sex offense that requires sex offender registration
  • You have at least two previous misdemeanor HS 11359 convictions
  • You possessed bhang for sale intending to sell or attempting to sell to a minor

If found guilty of the felony, you will face sixteen months, two years, or three years in jail.

Sometimes, the judge grants summary probation. In this case, you will not serve time. Nonetheless, you must comply with certain conditions, including:

  • Frequent progress report with the court
  • Paying restitution
  • Participating in a group or individual therapy
  • Submitting to drug tests
  • Searches on your property or person
  • Community service

Fighting HS 11359 Charges

Depending on the case circumstances, you can use any of the following legal defenses to fight the charges:

  • You did not know of the narcotic's existence
  • The marijuana was for your personal use
  • You are a medical marijuana patient's primary caregiver
  • You intended to share some cannabis with your friends
  • Law enforcer discovered the pot during an unlawful search


Sale or Transportation of a Controlled Substance

HS 11352 is the statute that bans:

  • Selling controlled substances
  • Transporting narcotics intending to sell them
  • Furnishing or administering narcotics to other people
  • Giving drugs away
  • Offering to engage in either of the above

Transporting in this context means taking drugs from point A to B irrespective of the distance's length. A person can transport drugs by air, foot, bicycle, boat, or car. Nevertheless, you could only be sentenced for transportation of controlled substances if you intended to sell the drugs.

Consequences and Penalties for Violating HS 11352

Transporting or selling a controlled substance is a felony. Your first-time offense carries the following penalties:

  • Formal probation
  • Five (5) years in jail under the realignment program
  • $20,000 in fines

Please note that the defendant is not eligible for felony probation if any of the below is accurate:

  • They were sentenced for offering to sell or selling at least 14.25 of heroin
  • They were found guilty of offering to sell or selling at least 14.25 of heroin, and they have a previous violation of Health and Safety Code 11351 or Health and Safety Code 11352

Like most drug crimes, violation of HS 11352 carries negative immigration consequences.

Selling or Transporting Drugs to a Minor

As an adult, you are guilty of selling or transporting drugs to a child when you:

  • Sell, give away, administer, or furnish a narcotic to a child
  • Hire, employ a juvenile to sell, give away, administer, or furnish a narcotic

The conduct will result in up to nine years in state prison.

Aggravating Factors

You are likely to face more severe penalties than the standard penalties if you:

  • Sell or transport large quantities of cocaine or heroin
  • Traffic drugs near homeless shelters or drug treatment institutions
  • Have a prior felony conviction for a drug offense

Sell or furnish drugs to an individual with a previous violent felony conviction, been treated for a drug challenge or a mental health condition, or an expectant mother.

Fighting the Criminal Charge

Luckily, there are numerous legal defenses that your skilled drug lawyer can present, including:

  • Police misconduct or entrapment
  • The drug was discovered during an unlawful search and seizure
  • The law enforcers misunderstood your intentions
  • You did not offer to transport or sell the drugs
  • The controlled substances were for personal use

Laws Regulating Sales, Use, and Possession of Cocaine in San Diego

Since cocaine's legal uses in California are limited, there are numerous regulations on its sale, possession, and use. When you possess cocaine, you commit a felony but selling or using it subjects you to many offenses.

Common drugs offenses involving cocaine include the following:

Personal Possession of Cocaine (HS 11350)

If law enforcers find you with cocaine, you will face a misdemeanor. It is punishable by a year in jail and $1,000 in fines.

Additionally, you can be charged with a felony if you have a previous conviction of a sex crime that requires sex offender registration or a serious felony. The felony carries a maximum of three (3) years in jail.

You could qualify for participation in a drug diversion program under Prop 36, drug courts, and PC 1000. Drug diversion permits you to engage in drug treatment instead of serving time. Defendants who complete the program qualify to charge dismissal.

Possession or Purchase of Cocaine for Sale

If the prosecution can establish that you bought or held cocaine intending to sell it, you will serve four-year imprisonment and pay twenty thousand dollars as a fine.

Nonetheless, if sentenced for purchasing or possessing cocaine base for sale, you serve five-year imprisonment and pay $20,000 in fine.

Also, if convicted of the crime and the cocaine's quantity is more than a kilogram, you will face an additional three to 25 years in state prison and pay a maximum fine of eight million dollars.

Driving Under the Influence of Cocaine

A person drives under the influence of cocaine when the controlled substance has impacted their muscles, brain, and nervous system that they cannot drive their vehicle like a sober, cautious and prudent person.

Generally, violation of this crime is a misdemeanor, punishable by incarceration and fines.

Concealing Drugs in a False Compartment

Per HS 11366.8, it is an offense to either:

  • Use or possess a false compartment intending to transport or hide drugs inside (HS 11366.8(a)), or
  • Build a compartment attached to or inside of a vehicle intending to transport or hide drugs in it (HS 11366.8(a)).

A false compartment means a container, space, enclosure, or box designed to or intended to hide drugs inside it.

On the other hand, a vehicle can be commercial or private.

Penalties and Sentencing

Violating this statute is a felony.

If found guilty of HS 11366.8(a), you will spend a year in jail. In contrast, an HS 11366.8(b) charge attracts up to three (3) years in county jail.

Manufacturing of Drugs and Narcotics

HS 11379.6 is the California statute that makes it illegal to manufacture narcotics. The law prohibits explicitly manufacturing, converting, deriving, producing, compounding, preparing, processing, or offering to engage in any of these actions.

Violation of the law is a felony, punishable by fines of fifty thousand dollars and seven (7) years in California state prison. Please note that you will serve more time in prison if you produce large quantities.

Manufacturing drugs and narcotics is a crime involving moral turpitude. It can lead to an immigrant being deported or marked as inadmissible.

Also, defendants do not qualify for expungement. Expungement elapses almost all negative consequences resulting from a conviction. However, this post-conviction relief is not available for offenses punishable by prison sentences.

Find a Skilled and Knowledgeable Drug Offense Defense Attorney Near Me

When charged with a drug offense, it is not only the immediate aftermath that you should be worried about. While potential penalties like fines, probation, and incarceration can seriously disrupt your life, having a conviction on the criminal record is consequential for the rest of your life. Fortunately, to convict you, the state should prove all elements of the crime beyond any reasonable doubt, giving you a fighting opportunity in your case.

At San Diego Criminal Defense Lawyer, we firmly believe that you are innocent until proven guilty and will not rest until the court agrees with us. We can work to ensure the prosecution team acts reasonably during the arrest and investigations, and your rights are protected. You can reach us by phone at 619-695-1677 at any time of the day to learn more or schedule your confidential, no-commitment initial consultation.