Health and Safety Code 11375 HS makes it a crime to possess, to possess for sale, or to sell certain controlled substances. These substances include prescription sedatives and benzodiazepine drugs such as
- Ativan, or
The possession for sale, and the sale, of any substance listed under HS 11375 is a type of wobbler offense, meaning that it can be punished as either a misdemeanor or a felony.
If charged as a felony, a person could face imprisonment for up to three years in the county jail or state prison. If charged as a misdemeanor, this imprisonment is reduced to a maximum time of one year.
A person that possesses a substance listed in HS 11375, without a lawful prescription, is guilty of an infraction or a misdemeanor.
There are several legal defenses that a person can raise if accused of a crime under Health and Safety Code 11375. These include showing that an accused party:
- Has a lawful prescription to possess;
- Possesses certain drugs, but does not intend to sell them;
- Does not legally “possess” them; and/or,
Our California criminal defense attorneys will explain the following in this article:
- 1. What is California’s law as to sedatives & benzodiazepines?
- 2. Are there defenses to 11375 HS?
- 3. What is the potential sentencing?
- 4. Related Offenses
1. What is California’s law as to sedatives & benzodiazepines?
California Health and Safety Code 11375(c) lists 18 specific benzodiazepine drugs and prescription sedatives.1 The most common include:
- Alprazolam (Xanax)
- Clonazepam (Klonopin)
- Diazepam (Valium)
- Lorazepam (Ativan)
With regards to all drugs listed under HS 11375(b)(1), it is a crime for any person to:
- Possess them with the intent to sell them; and,
- Sell them.2
Under HS 11375(b)(2), it is a crime for any person to possess a drug listed in HS 11375(c), unless that person has a lawful prescription for the drug.3
1.1. Meaning of Possess with the Intent to Sell
A prosecutor must prove three elements to successfully show that a party is guilty of a possession for sale charge. These are:
- The party possessed or had in his possession a substance designated under HS 11375;
- The party had an intent to sell it; and,
- The party knew of the presence of the substance and that it was a designated substance at the time he possessed it.
The last element is sometimes referred to as “legal knowledge.”
1.2. Meaning of Possession
Under California law, the legal definition of possession includes:
- Actual possession,
- Constructive possession, and
- Joint possession.
Actual possession is when a person:
- Holds an object; or,
- Has immediate access to it.
This includes when a person has an object on his body or within something he is holding or wearing.
Constructive possession is when a person:
- Doesn’t have immediate access to an object, but
- Still has control over it or the right to control it.4
For example, a person might have constructive possession over a house or car.
Joint possession is when two or more people share either actual or constructive possession of an object.
2. Are there defenses to 11375 HS?
A person accused of violating Health and Safety Code 11375 HS may raise a legal defense on his or her behalf. A good defense can often get an HS 11375 charge reduced or even dismissed. Please note, though, that is critical for an accused to hire an attorney to raise a defense on his behalf.
Three common defenses to Health and Safety Code 11375 accusations are:
- Lawful prescription;
- No intent to sell;
- No possession.
2.1. Lawful Prescription
This is a defense to the charge of possessing a substance designated under HS 11375(c). Recall that under HS 11375(b)(2), it is a crime for any person to possess a drug listed in HS 11375(c), unless he has a lawful prescription.
This means a perfectly valid defense to a possession charge is for a defendant to show that he had a lawful prescription for the substance in question.
2.2. No Intent to Sell
This is a defense to an HS 11375 charge of possession with the intent to sell. Recall that a key element in proving this charge is for a prosecutor to show that a defendant possessed a substance with the specific intent to sell it (See 1.1 above). If a defendant did not have this specific intent, then he cannot be guilty of possession with the intent to sell.
Please note, though, that if this defense is successful, the result is a reduction in charges. This means that, with no intent to sell, a prosecutor cannot prove possession with intent to sell. But, he could still try to prove the lesser crime of simple possession.
2.3. No Possession
This is a defense to an HS 11375 charge of possessing a substance designated under HS 11375(c). Recall that “possession” is a legal term that can take the form of either:
- Actual Possession,
- Constructive Possession, or
- Joint Possession. (See 1.3 above).
A defendant can try to get a possession charge dismissed by showing that he did not have “possession” of it.
3. What is the potential sentencing?
Under Health and Safety Code 11375(b)(1), the offenses of possession for sale and sale are wobbler offenses. This means they can be punished as either a California misdemeanor or a felony.
If charged as a felony, a person could face imprisonment for up to three years in the county jail or state prison.5 If charged as a misdemeanor, this imprisonment is reduced to a maximum time of one year.6
According to HS 11375(b)(2), a person guilty of possessing a designated substance (under HS 11375(c)), is guilty of either:
- A misdemeanor, or
- An infraction.7
California misdemeanors fall into two basic categories:
- “Standard” California misdemeanors, punishable by up to 6 months in jail and/or a fine of up to $1,000;8 and,
- “Gross” or “aggravated” misdemeanors,” punishable by up to 364 days in jail and/or a fine of up to $1,000 or more.9
4. Related Offenses
There are three crimes related to sale, possession for sale, and possession, as set forth in HS 11375. These are:
- Possession of a controlled substance – HS 11350;
- Possession for sale of a narcotic or controlled substance – HS 11351; and,
- Sale of synthetic (“designer”) drugs – HS 11375.5.
4.1. Possession of a Controlled Substance – HS 11350
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.” Examples include:
- Hydrocodone (Vicodin),
- Oxycodone (Oxycontin), and
Unlawful possession of a controlled substance, under California HS 11350, can be either a misdemeanor or a felony.
If a misdemeanor, a person faces up to a year in county jail, and/or a fine of up to $1,000.
If a felony, a person can be punished by 16 months, or two or three years in county jail.
4.2. Possession for Sale of a Narcotic or Controlled Substance – HS 11351
Health and Safety Code 11351 HS makes it a felony to possess for sale certain controlled substances. Such substances include drugs like:
- Oxycodone (Oxycontin),
- Hydrocodone (Vicodin), and
If convicted of violating California Health and Safety Code 11351 HS a person faces two, three or four years in county jail and/or a maximum $20,000 fine.
4.3. Sale of Synthetic (“Designer”) Drugs – HS 11375.5
California law prohibits the sale of synthetic “designer” drugs. Such drugs include synthetic cannabis (marijuana) and synthetic stimulants.
The sale of synthetic drugs is a California misdemeanor under:
- Health and Safety Code 11357.5 HS (synthetic cannabis),10 and
- Health and Safety Code 11375.5 HS (synthetic stimulants).11
It is punishable by:
- up to six (6) months in county jail, and/or
- a fine of up to $1,000.12
For further help…
If you or someone you know has been accused of violating Health and Safety Code 11375 HS, we invite you to contact us for a consultation. We can be reached 24/7.
- HS 11375(c) states: This section shall apply to any material, compound, mixture, or preparation containing any of the following substances:(1) Chlordiazepoxide. [Librium](2) Clonazepam. [Klonopin](3) Clorazepate. [Tranxene](4) Diazepam. [Valium](5) Flurazepam.(6) Lorazepam. [Ativan](7) Mebutamate.(8) Oxazepam.(9) Prazepam. [Doral](10) Temazepam.(11) Halazepam.(12) Alprazolam. [Xanax](13) Propoxyphene.(14) Diethylpropion.(15) Phentermine.(16) Pemoline.
California Health and Safety Code 11375(c) HS.
See, for example, People v. Mooring (Cal. App. 1st Dist. 2017), 223 Cal. Rptr. 3d 616.
- California Health and Safety Code 11375(b)(1) HS.
- California Health and Safety Code 11375(b)(2) HS.
- See, for example, CALCRIM 2304 [Simple possession of a controlled substance]: … [A person does not have to actually hold or touch something, to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]
- California Penal Code 1170(h)(1): “Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”
- California Penal Code 18.5 PC
- California Health and Safety Code 11375(b)(2) HS.
- California Penal Code 19 PC.
- California Penal Code 18.5 PC
- California Health and Safety Code 11357.5(a) HS.
- California Health and Safety Code 11375.5(a) HS.
- California Health and Safety Code 11357.5(a), endnote 1, and California Health and Safety Code 11375.5(a), endnote 2.