California Possession of a Controlled Substance
California Health and Safety Code 11350 HS prohibits possessing certain controlled substances without a valid prescription. A "controlled substance" is a drug or chemical whose manufacture, possession and use are regulated by the government under the United States "Controlled Substances Act".
Drugs covered by Health and Safety Code 11350
Controlled substances covered by HS 11350 include narcotics and other illegal drugs such as cocaine, heroin and LSD. The law also applies to prescription drugs such as hydrocodone (Vicodin), oxycodone (Oxycontin) and codeine.
Neither marijuana nor stimulants are covered by Health and Safety Code 11350. California Health and Safety Code 11357 HS applies to possession of marijuana. Possession of methamphetamines and other stimulants is covered by Health and Safety Code 11377.
Penalty for possession of a controlled substance
Unlawful possession of a controlled substance under California HS 11350 is usually a misdemeanor. If convicted, you face up to a year in county jail, and/or a fine of up to $1,000. If you qualify, however, you may be eligible for drug diversion (treatment) instead of jail time.
In certain circumstances illegal possession of a controlled substance can be prosecuted as a felony. These include if you have a prior conviction for a sex crime or a serious felony (such as murder or gross vehicular manslaughter). A felony conviction under HS 11350 can be punished by 16 months, or two or three years in county jail.
Defenses to HS 11350 charges
Legal defenses to HS 11350 often include (but are not limited to):
- You had a valid prescription for the drug
- You may legally possess drugs such as Vicodin or Oxycontin if you have a valid prescription and possess an amount consistent with the purpose of the prescription.
- You didn't possess the drugs
- In order to violate Health and Safety Code 11350 you must possess the controlled substance. If the drugs weren't on your person or subject to your control, you haven't violated the law.
- You didn't know the drugs were there
- If you didn't know you had the drugs--or you knew you had them but you didn't know what they were--you aren't guilty of violating Health and Safety Code 11350.
- You only had the drugs temporarily so that you could get rid of them.
- You are allowed to possess drugs for a short time in order to dispose of them. This does not, however, apply if you only ditched the drugs to avoid discovery or apprehension by the police.
- The drugs were found during an illegal search
- You can't be convicted under HS 11350 if the drugs were found during an illegal search. Similarly, if there was other police misconduct--such as threats or falsification of evidence--you may have a defense to possessing a controlled substance.
If you have been charged with possessing a controlled substance our California drug crime defense attorneys1 can help.
We're a statewide law firm whose attorneys include former drug prosecutors and former narcotics investigators. Now we defend people accused of drug crimes. By knowing how cops and district attorneys build their cases, we know how to pick them apart.
Maybe the cops stopped and searched you without probable cause. Maybe the drugs they found didn't even belong to you. Maybe you're addicted and you need treatment rather than punishment.
Whatever the case, we can help...
We understand that being accused of wrongfully possessing drugs can be scary. To help you better understand Health and Safety Code 11350 HS, we discuss the following, below:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
California Health and Safety Code 11350 HS makes it a crime to possess specific "controlled substances" as defined by the United States government.2
Controlled substances prohibited under HS 11350 include narcotics and other illegal drugs. Examples of such drugs include (but are not limited to):
- opiates and opiate derivatives,
- cocaine (and cocaine base),
- peyote, and
- certain hallucinogenic substances.3
In addition, California's illegal drug possession law also prohibits you from possessing certain prescribed drugs without a valid prescription. These are controlled substances that are frequently prescribed.and frequently abused. They include (but are not limited to):
In order to prove that you "possessed" a controlled substance, the prosecutor must prove that
- you exercised control over the drug (or had the right to do so),
- you knew of the drug's presence,
- you knew of its nature as a controlled substance, and
- there was a sufficient quantity of the drug to be used as a controlled substance.5
Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal meanings.
In the Health & Safety Code 11350 context, and in California criminal law generally, the legal definition of "possession" can refer to three distinct legal ideas. It could refer to "actual" possession, "constructive" possession or "joint" possession. Possessing an illegal narcotic under any of these definitions is illegal.
If you have "actual" possession of a controlled substance, then you have direct and immediate physical control over it. This usually means the drug is on your person (for example, in a pocket, in a purse/briefcase, or even in a body cavity).
If the police find you in actual possession of a controlled substance, it will be difficult...but by no means impossible...to argue that you didn't possess the drugs.
And even if the drugs are not "on you" when the cops do their search...but it's obvious that you did possess them shortly beforehand...you could still get charged.
Example: Defendant was convicted of possessing "LSD" even though he had ingested it before being investigated. Because he was believed to still be under the drug's influence at the time of the arrest...and because there was "no question that the defendant possessed the drug prior to ingesting it"...the court held that evidence of past possession could sustain a conviction for present possession.6
If you have "constructive" possession over a controlled substance, it means that the drugs were not found on your person but were discovered in a location over which you exercise control. This control may be direct or through another person/persons.7
Example: The police raid Tom's house and find his stash of PCP in his dresser drawer. It turns out Tom is away in another city when the raid takes place. Therefore the cops don't find Tom in actual possession of the PCP. However, the drugs belong to him and he has control over them. Thus he's in "constructive possession" and may be charged with Health & Safety Code 11350 HS.8
- having access to a controlled substance, nor
- being near the drugs (or near someone else who has the drugs)
is, by itself, sufficient to constitute possession.9
Suppose, for example, illegal drugs were found in your roommate's dresser. That evidence by itself would not support an allegation that you possessed the drugs. This is the case in spite of the fact that you probably have access to his room and that...when you are home...you are in close proximity to the drugs.
You have "joint" possession when you and at least one other person share either actual or constructive possession. This could be actual (where, for example, you and a friend are both sharing a needle that contains a narcotic) or constructive (where the drugs are found in the living room in an apartment that you share with your spouse or your roommate).
Example: Husband Harry and wife Wilma live together. The Sheriffs serve a search warrant and find a pound of cocaine in their refrigerator. The evidence reveals that the cocaine belongs to Harry. But Wilma knows it's there, and she allows him to keep it in their common refrigerator. Both Harry and Wilma could be charged under California's possession of a controlled substance law.
Before the prosecutor can convict you of possession of a controlled substance, he/she must prove that
- you knew of the drug's presence, and
- you knew of its nature as a controlled substance.
This is to say that if you either didn't know the drugs were present (or didn't know what they were), you should be acquitted of this offense.
This might be the case if, for example,
- you loaned your car to someone last week and, unbeknownst to you, that person had left some heroin balloons under your seat, or
- you knew you possessed a drug but believed that it was an over-the-counter ("OTC") drug because you took it out of a friend's medicine cabinet.
With respect to the second type of required knowledge, knowing the precise chemical makeup of the drug is not necessary. If you know that the drug is a controlled substance, that knowledge is sufficient to constitute the crime.10
The crime of "possession" requires that you possess enough of the drug so that it can be used as a controlled substance. This means that useless traces or residue of drugs will not support a conviction for possession. There has to be enough of the drug so that it can be used as a drug.11
However, that does not mean that there has to be enough of the controlled substance to have the effect it is ordinarily expected to produce (known as a "narcotic effect").12
The bottom line is that if you don't possess enough of the drug to consume it, you should be acquitted of this offense.
The good news is that there are a variety of legal defenses to a possession charge that a skilled California drug crimes lawyer could present on your behalf. And while the specific defenses that will apply to your case will vary, there are some that are common to many California drug crimes. Examples include (but are not limited to):
If you held a valid prescription for the drug, you are excused from a violation of Health and Safety Code 11350 HS as long as your possession of the controlled substance was consistent with the purpose of the prescription.13
As a result, this defense does not apply if, for example, you
- possess a fraudulent prescription for the drug (perhaps because you engaged in California prescription fraud or otherwise violated California's doctor shopping laws),
- are found in possession of more drugs than your prescription authorizes, or
- possess someone else's legally prescribed drugs.
While this defense seems obvious...and possibly even ridiculous...it's neither. Officers routinely arrest people for drug possession when these people had neither actual nor constructive possession over the seized drug(s).
Example: Defendant and two other people in a car were stopped by the police when the officer noticed the car slowly cruising back and forth in an alley in an area that had a high frequency of daytime burglaries. After the officer ordered the men out of the car...and as the men were standing in an ivy patch, a witness saw one of the men "shake" his clothes as if he were dropping something.
The men were released. At least three times thereafter, the defendant and others returned to the scene to search for something in the ivy. The same witness called the police who arrived and discovered a balloon filled with heroin in the ivy. The two men at the scene at that point (which included the defendant) were arrested.
The court held that once the heroin was abandoned in the ivy, the defendant did not have constructive possession on the day the controlled substance was found. The court further reasoned that (1) because the defendant unsuccessfully tried at least three different times to find the drugs, it did not appear that he placed the drugs there himself, and (2) that the defendant did not have exclusive access to or control over the ivy.14
Temporary possession of a controlled substance will act as a legal defense to a California possession charge if you
- only temporarily possessed the drugs in order to destroy or dispose of them in an effort to terminate someone else's unlawful possession, and
- didn't possess the drugs in order to prevent their imminent seizure by law enforcement.
However, if you voluntarily dispose of the narcotics when you are the person who exercised control over them...for example, flushing them down the toilet when the cops are busting down your door with a search warrant...that will not absolve you of criminal culpability.15
Once again, you can only be convicted of possessing a controlled substance if you
- knew you possessed the drug, and
- knew that it was, in fact, a controlled substance.
Example: David lent his jacket to his friend Fred. Fred scored some coke and placed a quarter baggie in the jacket's inside pocket. Fred forgot to retrieve the baggie when he returned the jacket to David. A couple days later, the cops stop and search David and find the cocaine. They arrest him for Health & Safety Code 11350: possession of a controlled substance. Because the drug didn't belong to David, and he didn't even know it was there until the police discovered it, he hasn't committed any crime.
Similarly, if you weren't aware that the drugs you possessed were illegal, you should be acquitted of illegal possession. This defense works best in cases where the defendant was caught with a controlled substance and appeared completely clueless about the fact that it was illegal.
However the prosecutor may point to facts such as
- having a prior drug record,
- running from the cops, and/or
- refusing to take a drug test
as circumstantial evidence that you knew you possessed the drugs and knew they were a controlled substance.
As San Bernardino criminal defense attorney Michael Scafiddi16 explains, "Many California drug crimes involve allegations of illegal searches and/or seizures. Some examples of violations of California search and seizure laws include (but are not limited to) situations where the officer
- illegally detains or arrests you (for example, pursuant to a stop that was based on racial profiling),
- discovers the controlled substances during an illegal search (either because he/she didn't have a California search warrant17 or because he/she searched beyond the permissible scope of the warrant), and/or
- uses excessive force to seize the illegal narcotics."
If your attorney suspects an illegal search and/or seizure took place, he/she will probably file a motion to suppress evidence. If the court grants this motion, the evidence-and probably the whole case-will get thrown out of court.
Health and Safety Code 11350 HS California's "possession of controlled substances" law is typically a misdemeanor. If convicted of this offense you face
- up to one (1) in county jail, and/or
- a fine of up to one thousand dollars ($1,000).18
However, you will face felony penalties (including sixteen (16) months, two (2) years or three (3) years in prison) for this offense if you have any of the following convictions on your record:
- a conviction for any of a small list of especially serious felonies, including murder, sexually violent offenses, sex crimes against a child under 14, and gross vehicular manslaughter while intoxicated, OR
- a conviction for a sex crime that subjects you to California's sex offender registration requirement.19
Prior to the passage of the voter initiative Proposition 47 in November 2014, 11350 HS was a felony for ALL defendants. If you were convicted of this offense before the passage of Prop 47 and received a felony sentence, you may petition the court to reduce your sentence to a misdemeanor.20
And if you are not a citizen of the United States, a conviction for possession of illegal drugs could additionally lead to deportation, denial of reentry and denial of naturalization.21 For more information about how California drug offenses affect aliens, please review our article on California Crimes that Lead to Deportation.
The good news is that a person can usually do drug diversion if he gets charged with Health & Safety Code 11350 HS: possession of a controlled substance in California. These include
These programs...known collectively as "drug diversion"...allow people who have committed non-violent drug possession offenses to serve their sentences in drug treatment programs in lieu of jail or prison.
The best part is that if you successfully complete the drug diversion program, your drug charges will ultimately be dismissed.
Drug diversion is not offered to everyone and, in fact, has a number of limitations.24 Consult with an experienced California drug crime defense attorney to find out if you qualify for this type of alternative sentencing.
There are a number of laws that are closely related to Health and Safety Code 11350 HS California's "possession of a controlled substance" law. Depending on the circumstances of your arrest, prosecutors may file these charges in addition to or in lieu of a possession charge.
Health and Safety Code 11351 HS California's "possession of a controlled substances for sale" law is similar to 11350 HS in that it involves the same drugs. However, this is the more serious of the two laws, as it relates to possessing the drugs for sale as opposed for to possessing them for personal use.
If convicted of this felony, you face either:
- probation with up to a year in county jail, or
- two, three or four years in county jail.25
Unlike HS 11350, drug diversion is not available to a defendant convicted of this offense.
This is another reason why having a savvy California drug crimes lawyer is so important. He/she knows the most effective ways to persuade the prosecutor to reduce the charge from possession for sales to simple possession of a controlled substance. That opens the opportunity to do drug diversion rather than custody time.
Similarly, Health and Safety Code 11352 HS California's "sales or transportation of a controlled substance" law also involves sales of the same prohibited narcotics. This is the most serious of the three laws, since it involves actual drug transactions (as opposed to possessing the drugs with the intent to use or sell them).
If convicted of this felony, you either face:
- probation, with up to a year county jail, or
- three, four or five years in county jail (three, six or nine years if you transport the drugs across more than two county lines).26
And again, because this offense involves sales (rather than simple, personal possession) drug diversion is not an option in connection with a conviction for this crime...that is, unless your attorney can alternatively negotiate a plea to a personal possession charge instead.
HS 11377 (possession of methamphetamines), HS 11378 (possession for sale of methamphetamines) and HS 11379 (sale/transportation of methamphetamines) mimic HS 11350 (and 11351 and 11352, discussed above), with one major difference.
The difference is that these laws regulate different drugs...slightly less "serious" drugs. And while methamphetamines...also referred to as "meth"...are probably the most common drugs that are prosecuted under these laws, they regulate a variety of other drugs as well. Some of these include (but are not limited to):
- MDMA (more commonly referred to as ecstasy, "E", "X", or "XTC"),
- specific anabolic steroids, and
- ketamine ("special K" or "K").
∗When drugs -- such as "GHB" -- are prohibited under more than one law, the prosecutor has the discretion to choose which charges to file.
Health and Safety Code 11377 HS is a misdemeanor in most cases. It subjects you to the same penalties and punishments as Health and Safety Code 11350 above.27
However, 11378 and 11379 are both straight felonies, subjecting to either:
- probation with up to one year county jail time, or
- 16 months to nine years in county jail.28
You violate Health and Safety Code 11550 HS California's "under the influence of a controlled substance" law anytime you (1) willfully use a controlled substance or narcotic, and/or (2) are under its influence.
"Under the influence" of a controlled substance means that you are under the influence in any detectable manner.
The drugs addressed in this law include controlled substances that are also covered by Health and Safety Codes 11377 and 11350 HS such as
- cocaine base,
- opiates or opiate derivatives,
- methamphetamines, and
A conviction for this misdemeanor drug offense subjects you to up to one year of jail. However, eligible defendants may be able to participate in drug diversion instead.29
A more serious crime is California Health and Safety Code 11370.1 HS, possession of a controlled substance while armed. Under Health and Safety Code 11370.1 HS, it is a felony to:
- unlawfully possess certain controlled substances,
- while knowingly armed with a loaded, operable firearm.30
The controlled substances to which Health and Safety Code 11370.1 applies are:
- PCP, or
- an analog of any of the foregoing.
Possessing one of these controlled substances while armed is punishable by:
- two, three, or four years in California state prison, and/or
- a fine of up to $10,000.
In addition, you are not eligible for drug diversion (treatment) instead of prison time after a Health and Safety Code 11370.1 conviction.
Conviction on this felony charge also subjects you to a lifetime ban on owning or possessing firearms under Penal Code 29800 PC, California's "felon with a firearm" law.31
It is a crime in California to be present while someone else uses unlawful controlled substances, under Health & Safety Code 11365 HS. However, you are only guilty of this offense if you did or said something to aid or abet that person's use of drugs.32
HS 11365 doesn't apply to marijuana use--but it does apply to many other common drugs, such as cocaine, cocaine base, heroin and peyote.33
Simple possession charges sometimes also involve charges of being present while others were using drugs. HS 11365 is a misdemeanor with a maximum jail sentence of six (6) months.34
Another related, and more serious, offense is opening or maintaining a "drug house" under Health & Safety Code 11366 HS. You can be charged with this offense if you repeatedly sell or give illegal controlled substances to other people at the same place (typically your house or apartment).35
Because operating a drug house is a wobbler and carries a potential state prison sentence, it often makes sense to try to bargain that charge down to a simple possession charge.36
Nitrous oxide--otherwise known as "laughing gas"--is not covered under HS 11350. However, possession of nitrous oxide is a crime under a separate law, Penal Code 381b PC.37
Possession of nitrous oxide differs from possession of a controlled substance in that the prosecutor must show that the defendant intended to use the nitrous oxide for recreational psychotropic purposes (rather than legitimate medical purposes). PC 381b possession of laughing gas is a misdemeanor.38
If you or loved one is charged with Health & Safety Code 11350 HS possession and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's "possession of a controlled substance" laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.39
¿Habla español? Visite nuestro sitio Web en español sobre el delito de posesión de drogas de California.
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2California Health and Safety Code 11350 HS -- Possession of controlled substances. ("(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.")
5California Jury Instructions, Criminal (CALCRIM) 1200.
6People v. Palaschak (1995) 9 Cal.4th 1236, 1242.
7People v. Showers (1968) 68 Cal.2d 639, 643-644.
8See, for example, People v. Mardian (1975) 47 Cal.App.3d 16 (overruled on other grounds).
9See same at 46.
10People v. Guy (1980) 107 Cal.App.3d 593, 600-601.
11People v. Leal (1966) 64 Cal.2d 504, 512.
12People v. Rubacalba (1993) 6 Cal.4th 62, 66.
See also CALJIC 12.33 -- Controlled Substance and Marijuana-Proof of Strength Unnecessary.
13People v. Ard (1938) 25 C.A.2d 630.
14People v. Showers (1968) 68 Cal.2d 639, endnote 7, above.
15CALJIC 12.06 Possession-Not Unlawful-Burden of Proof.
See also People v. Frazier (1998) 63 Cal.App.4th 1307.
16San Bernardino criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients accused of violating Health and Safety Code 11350 HS California's possession of a controlled substance law throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.
17Unless a search is (1) authorized by your consent, (2) incident to a lawful arrest, or (3) under some other recognized exception, it must be executed pursuant to a valid California search warrant. If you were arrested for possession of narcotics and the police found the drugs without a search warrant, be sure to consult with an experienced California drug crimes defense attorney.
18See Health and Safety Code 11350 HS California's "under the influence of a controlled substance" law, endnote 2, above.
See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
19See Health and Safety Code 11350 HS California's "under the influence of a controlled substance" law, endnote 2, above.
20Penal Code 1170.18 PC – Petition for recall of sentence; resentencing procedures; reduction of felonies to misdemeanors.
218 U.S. Code Section 1227 -- Deportable aliens.
22California Penal Code 1210.1 PC (also known as Proposition 36).
23California Penal Code 1000 PC.
24See endnotes 22 and 23, above.
25Health and Safety Code 11351 HS.
26Health and Safety Code 11352 HS -- Transportation, sale, giving away, etc., of designated controlled substances; punishment.
27Health and Safety Code 11377 HS - Possession of methamphetamines.
28California Health and Safety Code 11378 HS - Possession of methamphetamines for sale; punishment.
See also California Health and Safety Code 11379 HS -- Transportation, sale, furnishing, etc. of methamphetamines; punishment.
29California Health and Safety Code 11550 HS -- Under the influence of a controlled substance.
30California Health and Safety Code 11370.1 HS.
31California Penal Code 29800 (a)(1) PC..
32Health & Safety Code 11365 HS -- Being present while someone else uses controlled substances [may be charged along with possession of controlled substances].
35Health & Safety Code 11366 HS -- Operating a drug house [may be charged along with or instead of possession of controlled substances].
37 Penal Code 381b PC -- Possession of nitrous oxide [similar offense to possession of controlled substances].
39 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's drug crimes. Our Nevada law offices are located in Reno and Las Vegas.