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 offense to have unlawful possession of a controlled substance. The United States Controlled Substances Act specifies that a controlled substance can include both illegal and legal prescription drugs.

The maximum sentence is one year in county jail and a fine of up to $1000.00. Most drug possession charges in California get dismissed by successfully completing a

• PC 1000 drug diversion program or
• drug court.

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 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

Defenses

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

• 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 your gun rights.

You can seek to have a conviction expunged once you complete:

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

Our California criminal defense attorneys will explain 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 defenses to 11350(a) HS?
  • 2.1. No possession
  • 2.2. Lawful prescription
  • 2.3. Unlawful search and seizure
• 3. Is possession of a controlled substance a felony in California?
• 4. Are there immigration consequences if I possess drugs?
• 5. Can I get a conviction expunged?
• 6. Does a conviction affect my 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?

The general definition of possession of a controlled substance is having in your possession, or under your control, a drug or narcotic that has been made illegal by state or federal law and for which you do not have a valid prescription.

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

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

1. you possessed 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

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 not lawfully prescribed to you, 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

You have possession of a substance if you have control over it. This can be either personally or through another person. You do not have to actually 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, and
• 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.⁵

1.2. Knowledge

To be guilty under HS 11350, 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

Note, though, that 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.

1.3. Usable amount

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

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 you 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 defenses to 11350(a) HS?

You can raise a legal defense to try to defeat charges of possession of a controlled substance.

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 you are only guilty under this code section if you actually “possessed” a drug. This means it is a legal defense for you to show that you were never in constructive or actual possession of the drug.

2.2. Lawful prescription

You are not liable under this law if you 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 you did not have a valid prescription.

2.3. Unlawful Search and Seizure

The Fourth Amendment to the U.S. Constitution declares that you 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 your criminal case. This means that any drug charges could get reduced or even dismissed.

3. Is possession of a controlled substance a felony in California?

Under California drug sentencing guidelines, most instances of simple drug possession (for personal use) get charged as misdemeanors rather than felonies.

The crime is punishable by:

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

In certain circumstances, illegal possession of narcotics can be prosecuted as a felony. These include if you 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, you may qualify for a drug diversion (treatment) program or drug court. These programs allow you – if you committed a non-violent drug possession offense – to serve your sentence in a drug treatment program in lieu of jail or prison.

Finally, note that the L.A. County D.A.’s office generally does not prosecute HS 11350 cases.¹³

4. Are there immigration consequences if I possess 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 I get a conviction expunged?

If you are convicted of drug possession, you may be able to get the offense expunged.

Under Penal Code 1203.4, an expungement releases you 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 you:

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

This means that once you have successfully completed probation for the possession of a controlled substance, or serving a jail term for the same, you can try to get the offense expunged from your criminal records.

6. Does a conviction affect my gun rights?

A conviction under HS 11350 may have a negative effect on your 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 you are convicted of the offense, you would lose your California gun rights.

7. Are there related crimes?

There are three state law crimes related to unlawful drug possession charges. 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, you will be guilty under HS 11350 if you have 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 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 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 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.).”

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