§ 11377(a) HS – Possession of Methamphetamine

California Health & Safety Code § 11377(a) HS makes it a misdemeanor to possess methamphetamine for personal use (“simple possession”). If eligible, you can even get your charges dismissed by completing a diversion treatment program.

However, simple meth possession can be a felony if you have a prior conviction for a sex crime or other serious offense, as the following table spells out:

Simple Meth Possession Penalties in California
Most cases	Misdemeanor:  Up to 1 year in jail and/or $1,000
You have a prior conviction of certain serious crimes specified in PC 667(e)(2)(C)(iv) or PC 290(c)	Misdemeanor:  Up to 1 year in jail and/or $1,000 or Felony:  16 months, 2 years, or 3 years in jail and/or $10,000

Our methamphetamine possession lawyers are skilled when it comes to defending against HS 11377(a) charges. We know the most effective ways to fight California drug charges so that you are not labeled and stigmatized as a “drug offender.” Just some of the defenses we rely on include the following:

In this article, our California criminal defense attorneys discuss what you need to know about the crime of methamphetamine possession. Click on a topic to jump to that section.

• 1. Elements
• 2. Defenses
• 3. Penalties
• 4. Related Offenses
• Additional Resources

1. Elements

In order to convict you of meth possession under Health and Safety Code 11377, the prosecutor must prove the following four “elements” of the jury instructions (CALCRIM 2304):

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.¹

Let us take a closer look at these elements:

Meaning of “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 meth was (either directly or through another person); or
3. “Joint” possession: You shared actual or constructive possession with one or more other people.²

Note that simple possession is a less serious crime than possession of methamphetamines with the intent to sell it under Health and Safety Code 11378. The difference between HS 11377 and HS 11378 often comes down to:

• Your statements. For example, if someone overheard you saying you intended to sell crystal meth, your statements could be used to show you violated HS 11378.
• The quantity of meth you possessed. The more meth you had, the harder it will be to convince the prosecutor, judge or jury the drugs were only for your personal use.
• How the meth was packaged. Multiple bindles or baggies might indicate you intended to sell the methamphetamine.
• Presence of 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 and not for selling.

Meaning of “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.

However, you do not need to know the name of a drug or its precise chemical makeup in order to be guilty of methamphetamine possession. It is enough that you know generally that what you have is a controlled substance.³

Meaning of “Usable Quantity”

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

• smoke,
• snort, or
• swallow, etc.⁴

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 11377.⁵

Exception for Medical Professionals

Medical professionals–such as doctors, pharmacists and veterinarians–do not violate HS 11377 when they possess methamphetamines in accordance with California and federal law.⁶

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,
• ecstasy,
• PCP, and
• ketamine.⁷

Simple possession of these drugs carries the same or similar penalties as simple possession of methamphetamine.⁸

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people facing drug charges such as meth possession. In our experience, the following four defenses have proven effective with prosecutors and judges at getting 11377 HS charges reduced or dismissed.

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) 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.

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 argue 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. This may then leave the D.A. with too weak a case to prosecute you any further.

4) You Were Lawfully Delivering the Meth or Disposing of It

California Health & Safety Code 11377 HS says 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.⁹

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

3. Penalties

Simple possession of methamphetamine in violation of HS 11377 is usually a California misdemeanor, carrying:

• Up to 1 year in county jail and/or
• A fine of up to $1,000.¹⁰

However, possessing meth becomes a wobbler – meaning the D.A. can charge it as a misdemeanor or a felony – if you have a prior conviction 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.

Felony penalties include:

• 16 months, 2 years, or 3 years in county jail and/or
• A fine of up to $10,000.¹¹

Note that if the weight of the meth exceeds one kilogram, you face an additional three to 15 years in prison.¹²

Drug Diversion

You may be eligible for drug diversion (treatment) instead of jail time for an 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/rehab 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 simple possession as a plea bargain from one of those more serious charges, you may be eligible for drug diversion.

4. Related Offenses

• 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.

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.

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