Under Health & Safety Code 11383.5 HS, it is a crime to possess certain chemicals with the intent to use those materials to manufacture either methamphetamine or N-ethyl amphetamine. A violation of this law is a felony offense punishable by up to six years in county jail.
The language of Health & Safety Code 11383.5 states:
“Any person who possesses both methylamine and phenyl-2-propanone (phenylacetone) at the same time with the intent to manufacture methamphetamine, or who possesses both ethylamine and phenyl-2-propanone (phenylacetone) at the same time with the intent to manufacture N-ethyl amphetamine, is guilty of a felony…”
People can challenge manufacturing charges under this statute with a legal defense. A few common defenses include defendants showing that:
- they did not intend to manufacture meth,
- they did not possess certain chemicals, and/or
- law enforcement conducted an illegal search and seizure.
The crime is punishable by:
- up to six years in county jail under California’s realignment program, and/or
- a maximum fine of $10,000.
Our California criminal defense attorneys will explain the following in this article:
- 1. How does California law define “possessing materials for manufacturing methamphetamine”?
- 2. Are there legal defenses?
- 3. What are the penalties?
- 4. Are there related offenses?
1. How does California law define “possessing materials for manufacturing methamphetamine”?
A prosecutor must prove the following elements of the crime to successfully convict a person under this statute:
- the defendant possessed certain chemicals necessary to manufacture methamphetamine or N-ethyl amphetamine (or an analog of these drugs), and
- when the defendant possessed those chemicals, he/she specifically intended to use them to manufacture methamphetamine or N-ethyl amphetamine.1
The chemicals that can support a charge of unlawful possession of materials for manufacturing meth include:
- methylamine and phenyl-2-propanone (phenylacetone) – for the manufacturing of methamphetamine, and
- ethylamine and phenyl-2-propanone (phenylacetone) – for the manufacturing of N-ethyl amphetamine.2
For purposes of this statute, “possession” includes simple possession, as when a defendant has the above chemicals on his/her person.
Note, though, that people can even possess chemicals if they never touched them or carried them. This is true when an accused had control over the materials or the right to control them, either personally or through someone else.3
Note, too, that a person does not have to successfully manufacture illegal drugs to be guilty under this drug crime.
Further, a defendant can be guilty of this offense by merely possessing the chemicals and harboring a very vague hope of using them to manufacture drugs.
2. Are there legal defenses?
Criminal defense lawyers draw upon several legal strategies to help clients contest charges under this law. Three common ones include lawyers showing that:
- an accused did not intend to manufacture meth.
- a defendant did not possess certain chemicals or materials.
- police officers conducted an unlawful search and seizure.
2.1. No intent to manufacture
People are only guilty of violating this law if they possessed the chemicals listed within the code section and did so with the intent to make methamphetamine or N-ethyl amphetamine. Therefore, it is always a defense for an accused to show that he/she did not act with this aim.
2.2. No possession
Recall that a defendant is only guilty of violating this statute if he/she possessed:
- methylamine and phenyl-2-propanone (phenylacetone), or
- ethylamine and phenyl-2-propanone (phenylacetone).
Further, possession carries a very precise legal definition. A defense, then, is for a defendant to show that he/she did not possess the above chemicals.
2.3. Unlawful search and seizure
This is a popular defense for many drug crimes. The State of California says that police can only conduct a search or seize items pursuant to a valid search warrant. If they do not have one, then they must have a valid excuse. If no warrant or excuse, then any evidence gathered from the unlawful search or seizure can get excluded from the case.
If a defendant can show that law enforcement conducted an illegal search or seizure, then a judge could dismiss evidence from a case, reduce a defendant’s charges, or drop the charges entirely.
3. What are the penalties?
A violation of this code section is a felony offense.4
A felony conviction under HS 11383.5 is punishable by:
- a county jail sentence (as opposed to a state prison sentence) of up to six years, and/or
- a maximum fine of $10,000.5
These penalties can increase if the accused has prior convictions or a criminal record.
Note that people convicted under this statute are not allowed to get drug treatment under California’s drug diversion program, per Penal Code 1000.
4. Are there related offenses?
There are three crimes related to possessing materials for making meth. These are:
- possessing materials for manufacturing PCP – HS 11383,
- manufacturing controlled substances – HS 11379.6, and/or
- possession for sale of controlled substances – HS 11351.
4.1. Possessing materials for manufacturing PCP – HS 11383.5
Under Health & Safety Code 11383 HS, possessing materials for manufacturing PCP is the crime where people:
- possess certain chemicals in specified combinations that can be used to manufacture PCP (or an analog of this drugs), and
- do so with the intent to manufacture PCP.
The chemicals that can support a charge of possession of materials for manufacturing drugs under this code section include:
- piperidine and cyclohexanone,
- pyrrolidine and cyclohexanone, and
- morpholine and cyclohexanone.6
People can contest charges under this code section with the same defenses used to challenge charges under HS 11383.5
4.2. Manufacturing a controlled substance – HS 11379.6
Under Health & Safety Code 11379.6 HS, manufacturing a controlled substance is the crime where people make illegal narcotics such as meth, ecstasy, heroin, cocaine, and opiates.
Note that if a person possesses certain chemicals with the intent to make methamphetamine or N-ethyl amphetamine , and successfully manufactures these drugs, a prosecutor can charge the party with both:
- possessing chemicals for manufacturing meth, and
- manufacturing a controlled substance.
4.3. Possession for sale of controlled substances – HS 11351
Per Health & Safety Code 11351 HS, possession for sale of controlled substances is the crime where people possess certain controlled substances in order to sell them. People are not guilty under this law if they possess a controlled substance for personal use.
California law treats a violation of HS 11383.5 more seriously than a violation of this law. A first-time conviction of possession of drugs for sale are punished with a jail term of up to four years.
Further a person guilty of possession of methamphetamine for sale could be guilty under both this law and HS 11383.5 if he/she also manufactured the drug.
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, Orange County, and Sacramento.
- CALCRIM No. 2336. Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Verduzco (2012) 210 Cal.App.4th 1406.
- California Health & Safety Code 11383.5a HSC.
- CALCRIM No. 2336. See also People v. Barnes (1997) 57 Cal.App.4th 552.
- California Health & Safety Code 11383.5a HS.
- See same. See also Penal Code 1170h PC.
- California Health & Safety Code 11383a HS.