California Health and Safety Code 11378 HS makes it a crime to possess methamphetamine with the intent to sell it. This is a felony offense punishable by up to 3 years of jail time and fines of up to $10,000. A conviction also counts as a deportable offense for non-citizens.
- carrying baggies of meth in a backpack for the purpose of selling it to someone.
- driving a car to a “point of sale” with meth in the vehicle’s trunk.
- storing methamphetamine tablets in a closet for a few days before completing a sale.
Criminal defense lawyers draw upon several legal strategies to help clients contest charges under this statute. A few common ones include showing that:
- the accused did not possess meth with an “intent” to sell the drug,
- the accused did not “possess” meth, and/or
- law enforcement conducted an unlawful search and seizure.
The crime is punishable by:
- custody in county jail for up to three years, and/or
- a maximum fine of $10,000.
Our California criminal defense attorneys will explain the following in this article:
- 1. How does it mean to possess meth with the intent to sell?
- 2. Are there defenses to Health & Safety Code 11378 HS?
- 3. What are the penalties?
- 4. Are there related offenses?
1. How does it mean to possess meth with the intent to sell?
Under California’s criminal laws, a person is guilty of possession for sale of meth if all the following are true:
- the defendant unlawfully possessed methamphetamine,
- the defendant knew of the drug’s presence,
- the defendant knew of the substance’s nature or character as a controlled substance, and
- when the defendant possessed the controlled substance, he/she intended to sell it.1
Note that HS 11378 makes it illegal to possess for sale meth and non-narcotic controlled substances, including stimulants, “party drugs,” and illegal steroids.2
As to the “possession” of an illegal drug, a person does not have to actually hold or touch a substance to possess it. It is enough if the person has control over it, either personally or through another person.3
To be guilty under this code section, a person must possess enough meth so that it can be used as a controlled substance. This does not mean that a party has to possess a large quantity of meth so that someone can get high.4 Rather, there just has to be enough of the drug so that it can be used in the way someone would normally use methamphetamines (for example, smoke it, snort it, swallow it, etc.).5
A person does not violate this law if he/she is a medical professional (such as a pharmacist or veterinarian) and sells methamphetamines in accordance with California and federal law.
2. Are there defenses to Health & Safety Code 11378 HS?
People accused of drug charges pursuant to this statute have the right to challenge them with a legal defense/disclaimer. Three common defenses include accused people showing that:
- they did not intend to sell meth.
- they did not possess the drug.
- police conducted an unlawful search and seizure.
2.1. No intent to sell
Recall that people are only guilty under this law if they possessed methamphetamine and had the intent to sell the drug. Therefore, a defendant can always challenge a case by showing that he/she did not intend to sell meth. Perhaps, for example, the defendant had the drug for personal use.
2.2. No possession
Recall, too, that people actually have to possess meth to be convicted under this statute. Also, “possession” carries a precise legal definition under the law. A defense, then, is for an accused to show that he/she did not possess a controlled substance.
2.3. Unlawful search and seizure
This is a common defense to challenge many types of drug crimes. Police must have a warrant, or a legal excuse for not having one, to lawfully conduct a search and seizure. This means defendants can assert the defense that they were arrested after the authorities conducted an invalid search and seizure.6
3. What are the penalties?
A violation of this statute is a felony offense.
The crime is punishable by:
- custody in county jail (as opposed to a state prison sentence) for up to three years, and/or
- a maximum fine of $10,000.7
A defendant is not eligible for drug diversion (drug treatment) instead of jail time if convicted under this code section.
Further, defendants can receive enhanced jail time if any of the following apply:
- they violated the law on the grounds of a drug treatment center, a “detox” facility, or a homeless shelter,8
- they had more than one kilogram of meth in their possession,9
- they used a minor’s help to violate the statute or intended to sell meth to a minor.10
Note that if a defendant is a legal immigrant or legal alien, a conviction under HS 11378 could lead to deportation.
4. Are there related offenses?
There are several crimes related to the possession of meth for sale. These are:
- possession of methamphetamine – HS 11377,
- transporting or selling meth – HS 11379,
- possession of a controlled substance for sale – HS 11351,
- driving under the influence of drugs – VC 23152f, and
- being under the influence of a controlled substance – HS 11550.
4.1. Possession of methamphetamine – HS 11377
Per Health & Safety Code 11377, possession of meth is the crime where people unlawfully possess methamphetamines as well as certain other narcotics.
The term “possession” is defined in the same manner under this statute as under HS 11378.
4.2. Transporting or selling meth – HS 11379
Per Health & Safety Code 11379 HS, transporting or selling methamphetamine is the crime where people sell meth or transport it for sale.
Note that while HS 11378 criminalizes the possession of meth for sale, this statute focuses on the actual sale of meth and the transportation of it.
4.3. Possession of a controlled substance for sale – HS 11351
Under Health & Safety Code 11351 HS, possession of a controlled substance is the crime where people possess certain controlled substances in order to sell them.
Methamphetamine is a drug covered under this statute. Therefore, if a person possesses meth with the intent to sell the drug, then the party can be charged under either HS 11378 or HS 11351.
4.4. Driving under the influence of drugs (DUID) – VC 23152f
Under Vehicle Code 23152f VC, DUID is the crime where people drive while uånder the influence of drugs.
Unlike with violations under HS 11378, violations of this statute can lead to either misdemeanor or felony charges.
4.5. Being under the influence of a controlled substance – HS 11550
Per Health & Safety Code 11550, being under the influence of a controlled substance is the crime where people are under the influence of a controlled substance or a narcotic drug that is not lawfully prescribed.
A violation of this law is a less severe crime when compared to a violation of HS 11378. The offense is a misdemeanor punishable by a maximum jail sentence of one year.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
Our lawyers also represent clients throughout California State, including those in Los Angeles, San Diego, Newport Beach, Orange County, Riverside County, San Bernardino and Ventura.
- CALCRIM No. 2302 – Possession for Sale of Controlled Substance. Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Ramos (2016) 224 Cal.App.4th 99.
- California Health & Safety Code 11378 HS. See also People v. Washington (2021) 61 Cal.App.5th 776.
- CALCRIM No. 2302. For a discussion of simple possession vs. constructive possession, see People v. Barnes (1997) 57 Cal.App.4th 552.
- People v. Leal (1966) 64 Cal.2d 504.
- People v. Rubacalba (1993) 6 Cal.4th 62.
- See, for example, People v. Zabala (2018) 19 Cal.App.5th 335.
- California Health and Safety Code 11378 HS. See also California Penal Code 1170h PC.
- California Health and Safety Code 11380.7 HS.
- California Health and Safety Code 11370.4 HS.
- California Health and Safety Code 11353 HS.