Health and Safety Code 11378 HS – Possession for Sale of Meth

Updated September 3, 2020

California Health and Safety Code 11378 HS makes it illegal to possess methamphetamines with the intent to sell the drug. The crime is a felony punishable by up 16 months, 2 years or 3 years in jail. A conviction is also a deportable offense for non-citizens.

Possession of meth for sale is a different--and more serious--crime than Health and Safety Code 11377 HS personal possession of meth.^{1 2}

You are not eligible for drug diversion (treatment) instead of jail time if you are convicted of possessing meth with intent to sell it.

But you and your California methamphetamines defense lawyer can fight HS 11378 methamphetamine possession for sale charges with legal defenses that may include the following:

• the meth was for your personal use (you didn’t intend to sell it),
• the drugs weren’t yours,
• you didn’t know the crystal meth was there or that what you possessed was a controlled substance,
• you were a medical professional selling methamphetamines in accordance with California and federal drug laws,
• the police discovered the drugs during an unlawful search or committed another form of police misconduct.

To help you better understand the law, our California criminal defense attorneys will address the following:

• 1. To what drugs does Health and Safety Code 11378 HS apply?
• 2. What is the legal definition of HS 11378 possessing meth for sale?
• 3. How can I fight charges of 11378 HS methamphetamine possession for sale?
• 4. What are the penalties under Health and Safety Code 11378 HS?
  • 4.1. Will I be deported if I am convicted of possession of methamphetamine for sale?
  • 4.2. Am I eligible for drug diversion if I am convicted of meth possession with intent to sell?
• 5. HS 11378 methamphetamine possession for sale and related offenses

1. To what drugs does Health and Safety Code 11378 HS apply?

11378 HS makes it illegal to possess for sale non-narcotic controlled substances, including stimulants, “party drugs” and illegal steroids in addition to methamphetamines.

This includes drugs such as gamma hydroxybutyric acid (“GHB”), phencyclidine (“PCP”), ecstasy (“E”), ketamine (“special K” or “K”) and anabolic steroids.³

Note that Health and Safety Code 11378 does NOT apply to marijuana, or other commonly used and abused drugs like cocaine, heroin, prescription opiates (Vicodin, codeine, etc.), or hallucinogens such as LSD or peyote. Other California laws apply to the possession for sale of these substances.

2. What is the legal definition of HS 11378 possessing meth for sale?

For you to be convicted of methamphetamine possession for sale under Health and Safety Code 11378, the prosecutor must prove each of the following:

1. you possessed crystal meth or another prohibited controlled substance,
2. you knew that you possessed a drug,
3. you knew that the drug was a controlled substance,
4. you possessed enough of the drug to sell it for consumption, and
5. you possessed the drug with the specific intent to sell it.⁴

Possession

California’s criminal law defines “possession” in three ways: “actual,” “constructive,” or “joint” possession. Possessing methamphetamines for sale in any of these ways is illegal.

“Actual” possession usually means that you were holding the drugs or they were in something you were wearing or carrying--i.e., you physically possessed the methamphetamine.

“Constructive” possession means the crystal meth was in a location over which you exercised control (either directly or through another person).

“Joint” possession simply means that you shared actual or constructive possession with one or more other people.

Examples of possession for sale under HS 11378 include:

• You are holding a bag of crystal meth;
• You have a bottle of GHB in your backpack;
• You are hiding a vial of PCP in a body cavity;
• You leave some meth in the drawer of your office desk while you are out of town on a business trip;
• There is a bag of crystal meth underneath the sofa in the living room you share with your roommate;
• Your partner in a drug dealing operation has a stash of crank in a briefcase; and
• You just swallowed drugs in order to avoid getting busted.⁵

You don’t have to be holding or touching the drugs yourself in order to violate Health and Safety Code 11378 HS. If someone else possesses methamphetamines for sale on your behalf, you might still be convicted.

Knowledge

For you to be guilty of violating HS 11378 by possessing crystal meth for sale, the prosecutor must prove:

1. you knew of the meth’s presence, and
2. you knew of its nature as a controlled substance as defined by the United States Controlled Substances Act.

If you didn’t know you had the crystal meth or other drug covered by this law, or you didn’t know they were a controlled substance, you haven’t violated 11378 HS.

Example: Julio’s girlfriend Marie moves into his apartment temporarily while she is looking for a new place. When she finds a new apartment of her own, she moves out--but leaves some of her stuff behind.

One of the items Marie leaves behind is a suitcase that turns out to contain a fairly large quantity of crystal meth, packaged in individual bindles for sale.

Julio is not guilty of possession of methamphetamine for sale because he did not know what was in the suitcase, even though it was in his apartment.

You do not need to know the name of a drug or its precise chemical makeup in order to violate Health and Safety Code 11378 HS. It is enough that you know generally that what you have is a controlled substance.⁶

Usable quantity of meth

To be guilty of California possession of meth for sale, you must have enough crystal meth (or other HS 11378 drug) so that it can be used as a controlled substance.

This does not mean that you have to possess enough meth for someone to get high.⁷ There just has to be enough of the drug so that it can be used in the way someone would normally use methamphetamines (smoke, snort, swallow it, etc.).⁸

Intent to sell methamphetamines

Often the most important factors under HS 11378 is: was the methamphetamine or other drug for personal use or sale?

Ways the prosecutor can prove you intended to sell methamphetamine might include:

• Your statements. If someone heard you saying you had meth for sale, your statements would be evidence that could be used to prove you violated HS 11378.
• The quantity of methamphetamine you possessed. Sometimes a case comes down to one simple question: how much meth is too much for personal use? The more of the drug there is, the harder it will be to convince a judge or jury the drugs were for your personal use and not for sale.
• How the meth was packaged. Were the drugs in baggies or bindles? (A bindle is a small envelope of folded paper used for carrying powdered drugs.)  Multiple bindles or baggies is often evidence that you possessed methamphetamine for sale.
• You had no drug paraphernalia. Pipes, needles or straws for snorting might indicate you intended to use the crystal meth yourself. (The absence of drug paraphernalia alone does not prove you possessed methamphetamines for sale, however.)

Exception for medical professionals

You do not violate California Health and Safety Code 11378 HS if you are a medical professional—such as a pharmacist or veterinarian—selling methamphetamines in accordance with California and federal law.

3. How can I fight charges of 11378 HS methamphetamine possession for sale?

Experienced California methamphetamine crime defense attorneys know that there are two main strategies you can pursue if you are charged with Health & Safety Code 11378 HS.

First, you can argue that you are not guilty of any California drug crime. Legal defenses that support this strategy include:

• You didn’t actually possess meth;
• You held a valid prescription for the methamphetamine or other drug;
• You didn’t know the crystal meth was there;
• You thought the methamphetamines were a different, legal drug (such as over-the-counter diet pills);
• The meth was found during an unlawful search and seizure; and
• The police coerced your confession or falsified evidence (i.e., engaged in police misconduct).

Another strategy is to admit that you possessed meth (or another drug covered under HS 11378)--but argue that you possessed it for personal use only, rather than for sale.

As Riverside drug charges defense attorney Michael Scafiddi⁹ explains:

“If your defense attorney can convince the prosecutor or judge or jury that you possessed methamphetamine or another HS 11378 drug for personal use only, you will face less severe penalties. Just as importantly, instead of going to jail you will most likely be entitled to participate in a drug diversion program--which is not available to people charged with meth possession for sale.”

Ways to prove you possessed methamphetamine for personal use and not for sale might include:

• You possessed only a small quantity of meth;
• The drugs were found in one—or at most a few—containers; or
• You also possessed drug paraphernalia--such as a pipe, straws or needles--so that you could personally use the drug.

4. What are the penalties under Health and Safety Code 11378 HS?

Violation of Health and Safety Code 11378 HS is a California felony.

The basic penalties for possession of methamphetamine with intent to sell are:

• Sixteen (16) months, two (2) years or three (3) years in jail; and/or
• A fine of up to ten thousand dollars ($10,000).¹⁰

Additional jail time based on the location of the intended sale

You face an additional year in jail if you possessed meth for sale within 1,000 feet of--or on the grounds of--

• a drug treatment center,
• a “detox” facility or
• a homeless shelter.¹¹

Additional sentence for more than one kilogram of meth

Your sentence may also increase if you possessed more than one kilogram of meth for sale. In such a case, potential consequences of an HS 11378 conviction include an additional three to fifteen years--in state prison instead of county jail.¹²

Using a minor in a violation of HS 11378

If a minor (someone under 18) helps you commit methamphetamine possession for sale or is the intended buyer, you face an additional three, six or nine-year prison sentence.¹³

You may also face additional charges under Penal Code 272 PC, California’s contributing to the delinquency of a minor law. (Contributing to the delinquency of a minor is a separate offense that can be charged against anyone who involves a minor in criminal activity.)

4.1. Will I be deported if I am convicted of possession of methamphetamine for sale?

If you are a legal immigrant or legal alien, a conviction under HS 11378 could lead to deportation.

Unfortunately, deportation and other severe immigration consequences are all too common for people convicted of California drug crimes like possession with intent to sell methamphetamines.

4.2. Am I eligible for drug diversion if I am convicted of meth possession with intent to sell?

“Drug diversion” is an alternative sentencing option that allows a drug abuser to receive drug treatment in lieu of a jail or prison sentence.

Drug diversion (treatment) is available only if you are convicted of simple possession of a controlled substance—that is, possession for personal use rather than for sale.

However, if your California meth crimes attorney negotiates a reduced plea to simple possession rather than HS 11378 meth possession for sale, you may be eligible for diversion.

If you are eligible for drug treatment because of a plea bargain from possession for sale charges and successfully complete the program, the charges against you will usually be dismissed.

5. HS 11378 methamphetamine possession for sale and related offenses

Certain other California offenses are closely related to Health and Safety Code 11378 HS possession for sale of methamphetamines. Depending on the circumstances, these may be charged in addition to--or instead of--11378 HS.

Some of the most common of these code sections are:

Health & Safety Code 11377 HS — simple possession of methamphetamines

California Health and Safety Code 11377 HS personal possession of meth is the crime of possessing meth--or the other drugs covered by HS 11378, such as GHB and ketamine--for personal use only.

HS 11377 possession is usually a misdemeanor. It can be punished by up to one year in jail and/or a fine of up to $1,000.

And, as we mentioned above, unlike methamphetamine possession for sale, simple possession of meth is eligible for drug diversion in lieu of jail time.

Health & Safety Code 11379 HS — transporting or selling methamphetamines

Health and Safety Code 11379 HS transport or sale of methamphetamines is similar to 11378 HS methamphetamine possession for sale. However, under this code section you must actually:

• Sell the drugs (exchange them for money, services or anything else of value),
• Transport the drugs (move them even a short distance) with the intent to sell them,
• Give the drugs away or provide them to someone else, and/or
• Administer the drugs to another person.

A conviction for transport or sale of methamphetamines is a felony and subjects you to two, three, or four years in jail, and/or a maximum $10,000 fine.

And if you transport drugs covered by this section across more than two counties with the intent to sell them, the sentence can increase to three, six, or nine years in jail.

Health and Safety Code 11351 HS — possession of a controlled substance for sale

California Health and Safety Code 11351 HS  possession of a controlled substance for sale is an analogous offense to possession of methamphetamine for sale. The only difference is that it covers different substances

Drugs covered by HS 11351 include such commonly abused drugs as:

• Cocaine,
• Heroin,
• Prescription opiates, and
• LSD.

A conviction under HS 11351 is a more serious felony than HS 11378. The former subjects you to two, three or four years in jail and/or a maximum $10,000 fine.

Vehicle Code 23152(e) VC — driving under the influence of drugs

If you drive while under the influence of meth or another substance covered by 11378 HS, prosecutors could charge you with driving under the influence of drugs (“DUID”). This is true even if you do not possess the meth at the time of your arrest.

DUID under Vehicle Code 23152(e) carries the same penalties as driving under the influence of alcohol. A first offense usually subjects you to:

• up to one-year in a county jail,
• a maximum $390 fine before penalty assessments,
• a court-imposed driver’s license restriction for a minimum of six months, and
• a minimum three-month drug education class.

Health and Safety Code 11550 HS — being under the influence of a controlled substance

If you are under the influence of a controlled substance such as crystal meth when you are arrested for possession for sale of methamphetamines, prosecutors can also charge you with Health and Safety Code 11550 HS California’s “under the influence of a controlled substance law”.

Being under the influence of methamphetamine is a misdemeanor offense that may be eligible for drug diversion. If you are not eligible (or choose not to do) drug diversion, you face up to one (1) year in county jail.

Health & Safety Code 11379.6 — manufacturing a controlled substance

Health & Safety Code 11379.6 HS manufacturing a controlled substance is a felony. Under 11379.6 HS, it is illegal to manufacture, compound, produce, derive or process a controlled substance such as methamphetamines.

Manufacturing methamphetamine--by running a “meth lab”--is a more serious offense than possessing methamphetamine for sale. A conviction under HS 11379.6 subjects you to three, five, or seven years in jail and a fine of up to fifty thousand dollars ($50,000).

And that sentence can be increased if:

• large quantities are being produced,
• children are involved or near the meth lab,
• someone is injured or killed, or
• you have a prior drug conviction.

Health and Safety Code 11383.5 – possessing materials for making methamphetamine

Possession of materials for manufacturing methamphetamine is also a felony. You can be convicted of Health and Safety Code 11383.5 HS if, in addition to possessing methamphetamine for sale, you possess certain chemicals with the intent of using them to cook meth.

Possession of materials for the manufacture of methamphetamine carries a jail sentence of two (2), four (4) or six (6) years.

Call us for help…

If you or a loved one is charged with a drug crime such as Health & Safety Code 11378 HS possessing meth for sale, we invite you to contact us at Shouse Law Group. We provide free consultations in office or by phone.

Our California drugs lawyers have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada possession of methamphetamine laws.

¿Habla español? Visite nuestro sitio Web en español sobre el delito de posesión de metanfetamina con la intención de venderlo California.

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