Health & Safety Code § 11350(a) HS – Possession of a Controlled Substance in California

California Health and Safety Code § 11350(a) HS makes it a misdemeanor to possess controlled substances such as street drugs or medicinal narcotics without a valid prescription.

11350(a) HS is often referred to as

• “simple possession” or
• “possession for personal use.”

Most drug possession charges in California get dismissed by successfully completing a

• PC 1000 drug diversion program or
• drug court.

Otherwise, simple possession carries the standard misdemeanor penalties of up to one year in jail (or summary probation) and/or $1,000.

Examples of 11350(a) HS violations include:

• Going to a concert with a baggie of cocaine or hallucinogens in a backpack.
• Driving to a friend’s house with the opiate Vicodin in the glove box.
• Walking to the neighborhood park with a bundle of heroin or amphetamines in your pocket

The following bubble graph shows common strategies for fighting simple possession charges.

Below our California criminal defense attorneys explain what you need to know about the crime of drug possession. Click on a topic to jump to that section.

• 1. Elements
• 2. Defenses
• 3. Penalties
• 4. Immigration Consequences
• 5. Expungements
• 6. Gun Rights
• 7. Related Crimes
• Additional Resources

1. Elements

For you to be convicted of simple possession in violation of 11350(a) HS, prosecutors must prove beyond a reasonable doubt the following five elements of California Jury Instruction (CALCRIM) 2304.¹

1. you possessed a controlled substance (which are drugs regulated under the United States Controlled Substances Act) or analogs of a controlled substance,
2. you did not have a prescription for the substance,
3. you knew of the substance’s presence,
4. you knew of the substance’s nature as a controlled substance, and
5. the controlled substance was in a usable amount.²

These elements are discussed in more detail below. Note that neither marijuana nor stimulants are covered by 11350(a) HS; instead, marijuana is covered by 11357 HS, and methamphetamine and other stimulants are covered by 11377 HS.

“Possession” Meaning

You have possession of a substance if you have control over it. You do not actually have to hold or touch something in order to possess it.³

So, for example, you have constructive possession of a drug if it is in your:

• bag (even though it is in a locker or car trunk),
• storage unit, or
• closet.

Note that just because you agree to buy a controlled substance, it does not, by itself, mean that you have control over that substance.⁴ Also note that two or more people may possess something at the same time (called “joint possession”).⁵

“Knowledge” Meaning

To be guilty under 11350(a) HS, you must have knowledge of both:

1. the presence of the controlled substance and
2. the fact that the substance is indeed a controlled substance.⁶

A prosecutor does not have to prove that you knew which specific controlled substance you possessed.⁷ The D.A. only has to prove that you knew the drug was some type of drug.

“Usable Amount” Meaning

A “usable amount” is a quantity that is enough to be used by you as a controlled substance.⁸

Useless traces (or debris) are not usable amounts of drugs. On the other hand, a usable amount does not have to be enough, in either amount or strength, to intoxicate you.⁹

“Analog of a Controlled Substance” Meanign

11350(a) HS applies to the possession of “controlled substances” as well as an analog of a controlled substance.¹⁰

An analog of a controlled substance either:

1. has a chemical structure substantially similar to the structure of a controlled substance or
2. affects the central nervous system substantially similar to or greater than the effect of a controlled substance.¹¹

You cannot possess drugs if you are not aware of them.

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with drug possession under 11350(a) HS. In our experience, the following three defenses have proven very effective with California prosecutors, judges, and juries.

1) There Was No Possession

We had cases where someone planted the drugs on our clients or left drugs in their car without their knowledge. Since our clients did not know the drugs were there, they were not “in possession” and therefore committed no crime.

Typical evidence in these cases includes eyewitness accounts and video surveillance footage, if any. As long as the D.A. has insufficient proof that you were aware of the drugs, you cannot be convicted of possession.

2) You Had a Lawful Prescription

You are not liable under 11350(a) HS if you had a valid, written prescription for the controlled substance in question from a licensed:

• physician,
• dentist,
• podiatrist, or
• veterinarian.¹²

Once we produce a copy of this prescription and show it to the prosecutor, they usually dismiss the case outright. If you lost the prescription, we can retrieve it through online medical records.

3) The Police Conducted an Unlawful Search and Seizure

All the time we see police go beyond the bounds of the search warrant or conduct warrantless searches without justification. If the police in your case found the drugs through an unlawful search, we would ask the judge to suppress the drugs as evidence.¹³

If the judge agrees and disregards the drugs as evidence, the D.A.’s case may be significantly weakened. At that point, prosecutors may agree to reduce your charge or dismiss it completely for lack of proof.

Possession for personal use is usually a misdemeanor in California.

3. Penalties

In California, most simple drug possession charges are misdemeanors carrying:

• imprisonment in county jail for up to 1 year (or summary/informal probation) and/or
• a maximum fine of $1,000.

In some cases, you may qualify for a drug diversion (treatment) program or drug court in lieu of jail. Then once you complete treatment, the case would be dismissed.

Possession for personal use can be a felony in certain circumstances, such as if you have a prior conviction of a sex crime or serious felony. Penalties would include:

• 16 months, 2 years, or 3 years in jail and/or
• a maximum fine of $10,000.

Now that Proposition 36 is law, if you are arrested for possessing hard drugs such as fentanyl, heroin, cocaine, or methamphetamine – and you have two prior drug convictions – you can get prosecuted for a “treatment-mandated felony.” If you finish treatment, the charge gets dropped. If not, you face up to three years of incarceration.¹⁴

Learn more in our article on California drug sentencing guidelines.

4. Immigration Consequences

A conviction for drug possession in California may have negative immigration consequences, including deportation.¹⁵ For a more detailed discussion, see our article on the immigration consequences of drug crime convictions.

5. Expungements

Once you have successfully completed probation or your jail sentence for the possession of a controlled substance in California, you can try to get the offense expunged from your criminal records.

Under Penal Code 1203.4 PC, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.¹⁶

6. Gun Rights

A felony conviction under 11350(a) HS will strip you of your gun rights for life. A misdemeanor conviction should not affect your gun rights in California.¹⁷

Many first-time drug possession charges under 11350(a) HS can be dismissed through diversion.

7. Related Crimes

Possession of a Controlled Substance for Sale – 11351 HS

California Health and Safety Code 11351 HS makes it a felony to possess certain controlled substances in order to sell them. This crime is always a felony, even if no sale ever takes place.

Sale and Transportation of Controlled Substances – 11352 HS

Health and Safety Code 11352 HS prohibits:

• selling drugs,
• transporting controlled substances with the intent to sell them,
• furnishing or administering drugs to other people,
• giving controlled substances away, or
• offering to do any of the above acts.

Like possession for sale, 11352 HS is always a felony in California.

Under the Influence of a Controlled Substance – 11550 HS

Health and Safety Code 11550 HS is the California statute that makes it a misdemeanor for you to be under the influence of a controlled substance or a narcotic drug.

Note that there is no requirement under this law that you possess a drug. The mere fact of being under the influence of the drug is enough for a conviction.

Additional Resources

If you are struggling with substance abuse addiction, you can find help here:

• Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
• Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
• Recovery Centers of America – Treatment centers in seven states.
• SMART Recovery – Group therapy for young people struggling with addiction.
• Partnership to End Addiction – Information on how to find drug addiction treatment.

Legal References: