§ 11377(a) HS – Possession of Methamphetamine

Health & Safety Code § 11377(a) HS makes it a crime to possess methamphetamine. Simple possession for personal use is a misdemeanor punishable by up to one year in jail and $1,000.¹

Here are three key things to know:

1. Having meth can be charged as a felony if you have a prior conviction for a sex crime or serious offense.²
2. A felony sentence carries 16 months or two or three years in jail.³
3. Defenses to HS 11377(a) charges are you never possessed the meth, the police unlawfully searched, or you had a prescription.

Our methamphetamine possession lawyers are skilled when it comes to fighting meth possession charges. We know the most effective ways to fight California drug charges so that you are not labeled and stigmatized as a “drug offender.”

In this article, our California criminal defense attorneys answer the following frequently asked questions:

• 1. Elements of a Health and Safety Code 11377 HS charge
  • 1.1. Difference between simple possession and possession for sale
  • 1.2. Can medical professionals possess methamphetamine?
  • 1.3. Other drugs covered by the statute
• 2. How can I fight HS 11377 charges?
• 3. What are the penalties?
  • 3.1. Possession of more than one kilogram
  • 3.2. Am I eligible for drug diversion?
• 4. Related Offenses

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Elements of a Health and Safety Code 11377 HS charge

In order to convict you of meth possession under Health and Safety Code 11377, the prosecutor must prove the following four “elements” of the offense:

1. you possessed methamphetamines;
2. you knew you possessed the meth;
3. you knew what you had was a controlled substance (even if you did not know specifically that it was meth); and
4. there was enough meth to be used as a drug–not merely useless traces or residue.⁴

Let us take a closer look at these elements:

Possession

California’s criminal law defines “possession” in three ways:

1. “actual” possession: the meth was on your person, meaning you were holding it, or it was in something you were wearing or carrying;
2. “constructive” possession: you exercised control over the location where the crystal meth was (either directly or through another person); or
3. “joint” possession: you shared actual or constructive possession with one or more other people.⁵

Possessing meth in any of these three ways can subject you to a Health and Safety Code 11377 prosecution.

Knowledge

For you to be guilty under HS 11377, the prosecutor must prove:

1. you knew of the drug’s presence, and
2. you knew of its nature as a controlled substance.

If you did not know you had methamphetamines–or you did not know they were a controlled substance–you have not violated 11377 HS.

However, you do not need to know the name of a drug or its precise chemical makeup in order to be guilty of California methamphetamine possession. It is enough that you know generally that what you have is a controlled substance.⁶

Usable quantity

You do not violate Health and Safety Code 11377 unless you have enough meth to:

• smoke,
• snort, or
• swallow, etc.⁷

You do not have to possess enough meth to get high. It just means that you must have more than mere residue or traces in order to be guilty of methamphetamine possession under HS 11377.⁸

1.1. Difference between simple possession and possession for sale

HS 11377 applies to possession of meth for personal use—also known as “simple” possession. It is a less serious crime than Health and Safety Code 11378 possession of methamphetamines for sale.

The difference between HS 11377 and HS 11378 often comes down to:

• Your statements. If someone overheard you saying you intended to sell the meth, your statements could be used to show you violated HS 11378 by possessing methamphetamine for sale.
• The quantity of meth you possessed. The less crystal meth you had, the easier it will be to convince the prosecutor, judge or jury the drugs were for your personal use and that you are guilty of only simple possession of crystal meth.
• How the meth was packaged. Multiple bindles or baggies might indicate you intended to sell the methamphetamines. A single baggie, bindle or bottle would tend to prove the meth was for your personal use and an HS 11377 violation.
• Presence of drug paraphernalia. When the police also find drug paraphernalia such as a pipe, needles or straws for snorting, it can be evidence that the meth was for personal use.

1.2. Can medical professionals possess methamphetamine?

Medical professionals–such as doctors, pharmacists and veterinarians–do not violate HS 11377 when they possess methamphetamines in accordance with California and federal law.⁹

1.3. Other drugs covered by the statute

HS 11377 bans possession of not only methamphetamine but also other stimulants, anabolic steroids, and commonly used “party drugs” such as:

• GHB possession,
• ecstasy possession,
• PCP possession, and
• ketamine possession.¹⁰

Simple possession of these drugs carries the same or similar penalties as simple possession of methamphetamine.¹¹

2. How can I fight HS 11377 charges?

Here at Shouse Law Group, we have represented literally thousands of people facing drug charges such as meth possession. In our experience, the most effective defenses to Health and Safety Code 11377 are as follows:

2.1. You had a valid prescription

No crime occurred if we can show you held a valid prescription for the methamphetamines and possessed only an amount consistent with the prescription’s purpose. For evidence we would use your medical records and have forensic experts weigh the meth found by police.

2.2. You never possessed the meth

The D.A. should drop the charges against you if we can show that you never knowingly possessed the meth and that it belonged to someone else. For example, perhaps someone planted the meth on you or left the meth in your house without your knowledge.

Typical evidence we rely on to raise a “reasonable doubt” as to your knowledge includes surveillance video and eyewitness accounts. Unless the D.A. can prove beyond a reasonable doubt that you knew about the meth and had control over it, you broke no law.

2.3. The police found the meth through an unlawful search and seizure

For police to conduct a constitutional search of your person or property, they typically need a valid California search warrant supported by probable cause. The only time warrantless searches are legal is if they fall under a valid “exception,” such as:

• the evidence was in “plain view” of the police;
• the search was incident to an arrest;
• you were in a motor vehicle (the “automobile exception”);
• the police were in “hot pursuit” of you; or
• there were exigent circumstances.

In many cases, we can make non-frivolous arguments to the judge that the search in your case crossed the line and violated your constitutional rights. If the judge agrees with us, the judge could then suppress (disregard) all the unlawfully-discovered evidence (such as any meth) – which may then leave the D.A. with too weak a case to prosecute you any further.

2.4. You were lawfully delivering the meth or disposing of it

California Health & Safety Code 11377 HS specifically provides that you are not guilty of methamphetamine possession if all of the following are true:

1. Somebody else had a prescription for the meth;
2. You possessed the meth at the direction of or with the authorization of that person;
3. Your only intent was to deliver the crystal meth to the prescription holder or else dispose of it for them in a lawful manner; and
4. You did not personally use, distribute or sell the meth.¹²

In other words, it is a valid defense to HS 11377 methamphetamine possession charges that you were delivering meth to a prescription holder, or disposing of it for them.

3. What are the penalties?

Possession of meth in violation of HS 11377 is usually a misdemeanor. Consequences of misdemeanor possessing meth can include:

• up to one (1) year in county jail, and/or
• a fine of up to one thousand dollars ($1,000).¹³

However, you can face California felony penalties–including 16 months or two or three years in jail–for California methamphetamine possession if you have a prior conviction on your record for either:

• any of a small list of especially serious felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or
• a sex crime that subjects you to California’s sex offender registration requirement.

Note that the L.A. County D.A.’s office generally does not prosecute HS 11377 cases.¹⁴

3.1. Possession of more than one kilogram

If the weight of the meth that you are convicted of possessing exceeds one kilogram, you face an additional three (3) to fifteen (15) years in prison—even if the prosecutor cannot prove you intended to sell it.¹⁵

3.2. Am I eligible for drug diversion?

You may be eligible for drug diversion (treatment) instead of jail time for a 11377 HS violation if:

1. You are a first- or second-time non-violent offender, and
2. The meth was for your personal use alone.

“Drug diversion” is an alternative sentencing option that allows a drug abuser to receive drug treatment instead of jail time.

California has three drug diversion programs:

• Proposition 36,
• Penal Code 1000 PC, and
• California drug court.

Drug diversion is not available if you are convicted of or plead guilty to:

• selling meth under HS 11379, or
• possessing meth for sale under HS 11378.

However, if you plead guilty to HS 11377 simple possession as a plea bargain from one of those more serious charges, you will retain eligibility for drug diversion/rehab.

4. Related Offenses

A number of offenses are closely related to California Health and Safety Code 11377 HS simple possession of methamphetamines. Some of the most common are:

• HS 11350 possession of a controlled substance – simple possession of controlled substances is usually a misdemeanor carrying up to one year in jail.
• HS 11351 possessing a controlled substance for sale – it is a felony carrying up to four years in jail to possess controlled substances for the purpose of selling them.
• HS 11352 transporting or selling controlled substances – it is a felony carrying up to nine years in prison to sell or transport a controlled substance.
• HS 11378 methamphetamine possession for sale – it a felony carrying up to three years in jail to possess meth with the intent to sell them.
• HS 11379 methamphetamine sale or transport – it is a felony carrying up to four years in prison to sell, transport, give, or administer meth.
• HS 11379.6 manufacturing a controlled substance – making drugs is a felony carrying up to seven years in prison.
• HS 11383.5 possessing materials for manufacturing methamphetamine – having meth-making materials carries up to six years in prison even if no meth ends up getting made.
• HS 11550 under the influence of a controlled substance – being impaired by drugs is a misdemeanor carrying up to one year in jail.
• VC 23152(f) driving under the influence of drugs (“DUID”) – driving impaired by drugs such as meth is usually a misdemeanor carrying up to one year in jail.

---

Legal References: