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

Updated October 19, 2020

California Health and Safety Code 11350 HS makes it a misdemeanor to be in the unlawful possession of a controlled substance. The maximum sentence is one year in county jail and a fine of up to $1000.00. Most first time offenders can get the charge dismissed by successfully completing a PC 1000 drug diversion program or drug court.

Under the U.S. Controlled Substances Act, controlled substances include illicit street drugs such as heroin, as well as prescription medications such as Vicodin if possessed without a valid prescription.

This section is often referred to as “simple possession” or “possession for personal use.”

HS 11350 states that “except as otherwise provided in this division, every person who possesses…any controlled substance…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.”

Examples

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

Defenses

A defendant can raise a legal defense to contest a possession charge. A few common defenses to drug charges are that the defendant:

• did not “possess” a drug,
• had a valid prescription for the substance, and/or
• was arrested after an unlawful search and seizure.

Penalties

Simple drug possession is most often charged as a misdemeanor (as opposed to a felony or an infraction).

A conviction of this criminal charge is punishable by:

• imprisonment in county jail for up to one year, and/or
• a maximum fine of $1,000.

In lieu of jail time, a judge may impose misdemeanor (or summary probation).

Also note that a drug crime conviction may have negative:

• immigration consequences (if applicable), and
• impact on a person’s gun rights.

A person convicted of this offense can seek to have it expunged once he completes:

• probation (if imposed), or
• any jail time (if imposed).

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is possession of a controlled substance?
  • 1.1. Possession
  • 1.2. Knowledge
  • 1.3. Usable amount
  • 1.4. Analog of a controlled substance
• 2. Are there legal defenses?
  • 2.1. No possession
  • 2.2. Lawful prescription
  • 2.3. Unlawful search and seizure
• 3. What are the penalties for 11350 HS?
• 4. Are there immigration consequences if a person possesses drugs?
• 5. Can a person get a conviction expunged?
• 6. Does a conviction affect a person’s gun rights?
• 7. Are there related crimes?
  • 7.1. Possession of a controlled substance for sale – HS 11351
  • 7.2. Sale and Transportation of controlled substances – HS 11352
  • 7.3. Under the influence of a controlled substance – HS 11550

1. What is possession of a controlled
substance?

Health and Safety Code 11350 HS is the California statute that makes it a crime for a person to possess certain controlled substances without a valid prescription.¹

A prosecutor must prove five things in order to convict a defendant of this crime. These are called “elements of the crime.” The 5 elements of a possession charge are:

1. the defendant possessed a controlled substance,
2. the accused did not have a prescription for the substance,
3. the defendant knew of the substance’s presence,
4. the defendant knew of the substance’s nature as a controlled substance, and
5. the controlled substance was in a usable amount.²

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.

Some controlled substances covered by this law include such illegal drugs:

• cocaine,
• heroin,
• LSD, and
• peyote

The law also applies to prescription drugs such as:

• hydrocodone (Vicodin),
• oxycodone (Oxycontin),
• ketamine,
• Valium,
• Xanax, and
• codeine.

Note that neither marijuana nor stimulants are covered by this code section. 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 HS.

Questions arise under this statute on the meaning of:

• possession,
• knowledge,
• usable amount, and
• an analog of a controlled substance.

1.1. Possession

A person has possession of a substance if he has control over it. This can be either personally or through another person. A party does not have to actually hold or touch something in order to possess it.³

So, for example, a person has constructive possession of a drug if it is in his:

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

Note that a person agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.⁴

Also note that two or more people may possess something at the same time.⁵

1.2. Knowledge

To be guilty under HS 11350, an accused 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

Note, though, that a prosecutor does not have to prove that the defendant knew which specific controlled substance he possessed.⁷ He only has to prove that the accused knew the drug was some type of drug.

1.3. Usable amount

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

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

1.4. Analog of a controlled substance

This statute applies to the possession of “controlled substances” as discussed in Section 1. It also makes it a crime for a person to possess 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. has an effect on the central nervous system substantially similar to or greater than the effect of a controlled substance.¹¹

2. Are there legal defenses?

A defendant can raise a legal defense to try to challenge possession of a controlled substance charges.

Three common defenses to HS 11350 accusations are:

1. no possession,
2. lawful prescription, and/or
3. unlawful search and seizure.

2.1. No possession

Recall that an accused is only guilty under this code section if he actually “possessed” a drug. This means it is a legal defense for a defendant to show that he did not possess a narcotic.

2.2. Lawful prescription

An accused is not liable under this law if he had a valid, written prescription for a controlled substance from a licensed:

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

The prosecutor has the burden of proving beyond a reasonable doubt that the defendant did not have a valid prescription.

2.3. Unlawful Search and Seizure

The Fourth Amendment to the U.S. Constitution declares that people have the right to be free from unreasonable “searches and seizures” by law enforcement officers. If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

3. What are the penalties for 11350 HS?

Most instances of drug possession get charged as misdemeanors.

The crime is punishable by:

• imprisonment in county jail for up to one year, and/or
• a maximum fine of $1,000.¹³

In certain circumstances, illegal possession of narcotics can be prosecuted as a felony. These include if a defendant had a prior conviction for a sex crime or a serious felony. A felony conviction can be punished by up to three years in county jail.

Also note that in some unlawful possession cases, the defendant may qualify for a drug diversion (treatment) program or drug court. These programs allow people who have committed non-violent drug possession offenses to serve their sentences in drug treatment programs in lieu of jail or prison.

4. Are there immigration consequences if a person possesses drugs?

A conviction for drug possession may have negative immigration consequences.

Note that under United States immigration law, certain kinds of criminal convictions in California can lead to a non-citizen being deported. Some convictions can also make an immigrant “inadmissible.”

A category of “deportable” or “inadmissible” crimes includes certain drug offenses.¹⁴

This means, depending on the specific facts of a case, a violation of HS 11350 may lead to detrimental immigration effects.

For a more detailed discussion, see our article on the immigration consequences of drug crime convictions.

5. Can a person get a conviction expunged?

A person convicted of drug possession may be able to get the offense expunged.

Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.¹⁵

As a basic rule, PC 1203.4 authorizes an expungement for a misdemeanor or felony offense provided the applicant:

1. successfully completed probation (either felony probation or misdemeanor probation), and
2. is not currently charged with a criminal offense, on probation, or in jail.¹⁶

This means that once a defendant has successfully completed probation for the possession of a controlled substance, or serving a jail term for the same, he can try to get the offense expunged.

6. Does a conviction affect a person’s gun rights?

A conviction under HS 11350 may have a negative effect on the convicted party’s gun rights.

According to California law, convicted felons are prohibited from acquiring or possessing a gun in California.

Recall that there are some situations when the illegal possession of a controlled substance can be prosecuted as a felony. If this is done, and the accused is convicted of the offense, the defendant would lose his California gun rights.

7. Are there related crimes?

There are three state law crimes related to the unlawful possession of a drug. These are:

1. possession of a controlled substance for sale – HS 11351
2. sale and transportation of controlled substances – HS 11352, and
3. under the influence of a controlled substance – HS 11550.

7.1. Possession of a controlled substance for sale – HS 11351

California Health and Safety Code 11351 HS makes it a felony to possess certain controlled substances in order to sell them.

Note that, in comparison to this law, a person will be guilty under HS 11350 even if no intent to sell the substance.

7.2. Sale and transportation of controlled substances – HS 11352

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.

The reach of this statute is much broader than both HS 11350 and HS 11351.

7.3. Under the influence of a controlled substance – HS 11550

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

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

For additional help…

If you or someone you know has been accused of a crime under Health and Safety Code 11350 HS, our criminal defense lawyers invite you to contact us for a free consultation. We create attorney-client relationships throughout the state.

For similar accusations in Nevada, please see our article on “NRS 453.336 – Nevada ‘Drug Possession’ Laws.”

For similar accusations in Colorado, please see our article on “Unlawful Possession of a Controlled Substance (Colorado 18-18-403.5 C.R.S.).”

Legal References: