Health and Safety Code 11350 HS – Possession of a Controlled Substance in California

Updated

Possession of Drugs AFTER Proposition 47

More info at http://www.shouselaw.com/hs-11350.html What is the law re possession of a controlled substance? The penalties and punishment? Is drug diversion available? How to fight the case? In this video, a former district attorney — now a California criminal defense lawyer — answers all these questions. Health & Safety Code 11350 makes it a crime to have possession of illegal narcotics such as cocaine, heroin, LSD, GHB and other drugs. The crime used to be a felony. But after Proposition 47, it is now only a misdemeanor with a maximum sentence of one year in county jail. Most offenders do qualify for drug version. A good criminal defense lawyer can fight many charges of Health & Safety Code 11350. Typical defenses include asserting that the drugs were discovered via an illegal search and seizure, that the drugs did not belong to you, or that you were unaware of their presence.


Health and Safety Code 11350 HS
 makes it a misdemeanor in California to be in the unlawful possession of a controlled substance. The punishment includes imprisonment in the county jail for up to one year and a fine of up to $1000.00. Most first time offenders, however, can get the charge dismissed by successfully completing a drug diversion program.

Under the U.S. Controlled Substances Act, controlled substances include illicit street drugs such as heroin, as well as prescription medications such as Vicodin if possessed without a valid prescription.

This section is often referred to as "simple possession" or "possession for personal use."

HS 11350 states that “except as otherwise provided in this division, every person who possesses…any controlled substance…unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year.”

Examples

  • Going to a concert with a baggie of cocaine in a backpack.
  • Driving to a friend's house with (unprescribed) oxycotin in the glove box.
  • Walking to the neighborhood park with a bindle of heroin your pocket

Defenses

A defendant can raise a legal defense to contest a possession charge. A few common defenses are that the defendant:

  • did not “possess” a drug,
  • had a valid prescription for the substance, and/or
  • was arrested after an unlawful search and seizure.

Penalties

Simple drug possession is most often charged as a misdemeanor (as opposed to a felony or an infraction).

The crime is punishable by:

  • imprisonment in county jail for up to one year, and/or
  • a maximum fine of $1,000.

In lieu of jail time, a judge may impose misdemeanor (or summary probation).

Also note that a drug crime conviction may have negative:

A person convicted of this offense can seek to have it expunged once he completes:

  • probation (if imposed), or
  • any jail time (if imposed).

Our California criminal defense attorneys will highlight the following in this article:

cocaine lines and a rolled up hundred dollar bill; possession of cocaine is a crime under 11350 HS
It is a crime for a person to: possess a certain controlled substance, and to do so without a valid prescription.

1. How does the law define possession of a controlled substance?

Health and Safety Code 11350 HS is the California statute that makes it a crime for a person to possess certain controlled substances without a valid prescription.1

A prosecutor must prove five things in order to convict a defendant of this crime. These are called "elements of the crime." The 5 elements of a possession charge are:

  1. the defendant possessed a controlled substance,
  2. the accused did not have a prescription for the substance,
  3. the defendant knew of the substance's presence,
  4. the defendant knew of the substance's nature as a controlled substance, and
  5. the controlled substance was in a usable amount.2

A "controlled substance" is a drug or chemical whose:

  • manufacture,
  • possession, and
  • use

are regulated by the government under the United States Controlled Substances Act.

Some controlled substances covered by this law include:

  • cocaine,
  • heroin, and
  • LSD.

The law also applies to prescription drugs such as:

  • hydrocodone (Vicodin),
  • oxycodone (Oxycontin), and
  • codeine.

Note that neither marijuana nor stimulants are covered by this code section. California Health and Safety Code 11357 HS applies to possession of marijuana. Possession of methamphetamines and other stimulants is covered by Health and Safety Code 11377 HS.

Questions arise under this statute on the meaning of:

  • possession,
  • knowledge,
  • usable amount, and
  • an analog of a controlled substance.

1.1. Possession

A person has possession of a substance if he has control over it. This can be either personally or through another person. A party does not have to actually hold or touch something in order to possess it.3

So, for example, a person has possession of a drug if it is in his:

  • bag (even though it is in a locker or car trunk),
  • storage unit, and
  • closet.

Note that a person agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.4

Also note that two or more people may possess something at the same time.5

1.2. Knowledge

To be guilty under HS 11350, an accused must have knowledge of both:

  1. the presence of the controlled substance, and
  2. the fact that the substance is indeed a controlled substance.6

Note, though, that a prosecutor does not have to prove that the defendant knew which specific controlled substance he possessed.7 He only has to prove that the accused knew the drug was some type of drug.

1.3. Usable amount

A “usable amount” is a quantity that is enough to be used by someone as a controlled substance.8

Useless traces (or debris) are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to intoxicate the user.9

1.4. Analog of a controlled substance

This statute applies to the possession of “controlled substances” as discussed in Section 1. It also makes it a crime for a person to possess an analog of a controlled substance.10

An analog of a controlled substance either:

  1. has a chemical structure substantially similar to the structure of a controlled substance, or
  2. has an effect on the central nervous system substantially similar to or greater than the effect of a controlled substance.11
attorney speaking with judge regarding possession of a controlled substance charges
There are multiple legal defenses...

2. Are there legal defenses?

A defendant can raise a legal defense to try to challenge an accusation of possessing a controlled substance.

Three common defenses to HS 11350 accusations are:

  1. no possession,
  2. lawful prescription, and/or
  3. unlawful search and seizure.

2.1. No possession

Recall that an accused is only guilty under this code section if he actually “possessed” a drug. This means it is a legal defense for a defendant to show that he did not possess a narcotic.

2.2. Lawful prescription

An accused is not liable under this law if he had a valid, written prescription for a controlled substance from a licensed:

  • physician,
  • dentist,
  • podiatrist, or
  • veterinarian.12

The prosecutor has the burden of proving beyond a reasonable doubt that the defendant did not have a valid prescription.

2.3. Unlawful Search and Seizure

The Fourth Amendment to the U.S. Constitution declares that people have the right to be free from unreasonable “searches and seizures” by law enforcement. If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

courtroom judge's chair
The crime is punishable by imprisonment in county jail for up to one year, and/or a maximum fine of $1,000.

3. What are the penalties for 11350 HS?

Most instances of drug possession get charged as misdemeanors.

The crime is punishable by:

  • imprisonment in county jail for up to one year, and/or
  • a maximum fine of $1,000.13

In certain circumstances, illegal possession of narcotics can be prosecuted as a felony. These include if a defendant had a prior conviction for a sex crime or a serious felony. A felony conviction can be punished by up to three years in county jail.

Also note that in some unlawful possession cases, the defendant may qualify for a drug diversion (treatment) program or drug court. These programs allow people who have committed non-violent drug possession offenses to serve their sentences in drug treatment programs in lieu of jail or prison.

4. Are there immigration consequences if a person possesses drugs?

A conviction for drug possession may have negative immigration consequences.

Note that under United States immigration law, certain kinds of criminal convictions in California can lead to a non-citizen being deported. Some convictions can also make an immigrant "inadmissible.”

A category of “deportable” or “inadmissible” crimes includes certain drug offenses.14

This means, depending on the specific facts of a case, a violation of HS 11350 may lead to detrimental immigration effects.

For a more detailed discussion, see our article on the immigration consequences of drug crime convictions.

criminal record expungement
Fortunately, a person convicted of drug possession may be able to get the offense expunged.

5. Can a person get a conviction expunged?

A person convicted of drug possession may be able to get the offense expunged.

Under Penal Code 1203.4, an expungement releases an individual from virtually "all penalties and disabilities" arising out of the conviction.15

As a basic rule, PC 1203.4 authorizes an expungement for a misdemeanor or felony offense provided the applicant:

  1. successfully completed probation (either felony probation or misdemeanor probation), and
  2. is not currently charged with a criminal offense, on probation, or in jail.16

This means that once a defendant has successfully completed probation for the possession of a controlled substance, or serving a jail term for the same, he can try to get the offense expunged.

6. Does a conviction affect a person's gun rights?

A conviction under HS 11350 may have a negative effect on the convicted party's gun rights.

According to California law, convicted felons are prohibited from acquiring or possessing a gun in California.

Recall that there are some situations when the illegal possession of a controlled substance can be prosecuted as a felony. If this is done, and the accused is convicted of the offense, the defendant would lose his California gun rights.

7. Are there related crimes?

There are three crimes related to the unlawful possession of a drug. These are:

  1. possession of a controlled substance for sale – HS 11351
  2. sale and transportation of controlled substances – HS 11352, and
  3. under the influence of a controlled substance – HS 11550.

7.1. Possession of a controlled substance for sale – HS 11351

California Health and Safety Code 11351 HS makes it a felony to possess certain controlled substances in order to sell them.

Note that, in comparison to this law, a person will be guilty under HS 11350 even if no intent to sell the substance.

7.2. Sale and transportation of controlled substances – HS 11352

Health and Safety Code 11352 HS prohibits:

  • selling drugs,
  • transporting controlled substances with the intent to sell them,
  • furnishing or administering drugs to other people,
  • giving controlled substances away, or
  • offering to do any of the above acts.

The reach of this statute is much broader than both HS 11350 and HS 11351.

7.3. Under the influence of a controlled substance – HS 11550

Health and Safety Code 11550 HS is the California statute that makes it a crime for a person to be under the influence of a controlled substance or a narcotic drug.

Note that there is no requirement under this law that the accused possessed a drug. The mere fact of being under the influence of the drug is enough for a conviction.

Were you accused of possessing a controlled substance in California? Call us for help…

california drug offense attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know has been accused of a crime under Health and Safety Code 11350 HS, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.

For similar accusations in Nevada, please see our article on “NRS 453.336 - Nevada ‘Drug Possession' Laws.”

For similar accusations in Colorado, please see our article on “Unlawful Possession of a Controlled Substance (Colorado 18-18-403.5 C.R.S.).”


Legal References:

  1. California Health and Safety Code 11350 HS reads:

    (a)  Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in a county jail for not more than one year, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.

    (b) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a), the judge may, in addition to any punishment provided for pursuant to subdivision (a), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.

    (c) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered:

    (1)  For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service.

    (2)  For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service.

    (3)  If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.

    (d) It is not unlawful for a person other than the prescription holder to possess a controlled substance described in subdivision (a) if both of the following apply:

    (1) The possession of the controlled substance is at the direction or with the express authorization of the prescription holder.

    (2) The sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner.

    (e) This section does not permit the use of a controlled substance by a person other than the prescription holder or permit the distribution or sale of a controlled substance that is otherwise inconsistent with the prescription.

  2. CALCRIM No. 2304 - Simple Possession of Controlled Substance. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Palaschak (1995) 9 Cal.4th 1236.

  3. CALCRIM No. 2304. See also People v. Banes (1997) 57 Cal.App.4th 552.

  4. See same.

  5. See same.

  6. CALCRIM No. 2304. See also People v. Horn (1960) 187 Cal.App.2d 68.

  7. See same.

  8. CALCRIM No. 2304. See also People v. Rubacalba (1993) c Cal.4th 62.

  9. See same.

  10. CALCRIM No. 2304.

  11. See same. See also People v. Davis (2013) 57 Cal.4th 353.

  12. California Health and Safety Code 11350 HS.

  13. See same.

  14. See INA 237 (a) (2) (A).

  15. California Penal Code 1203.4 PC.

  16. See same.

Free attorney consultations...

The attorneys at Shouse Law Group bring more than 100 years collective experience fighting for individuals. We're ready to fight for you. Call us 24 hours a day, 365 days a year at 855-LAW-FIRM for a free case evaluation.

Regain peace of mind...

Shouse Law Defense Group has multiple locations throughout California. Click Office Locations to find out which office is right for you.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

Call us 24/7 (855) 396-0370