Possession For Sale of a Controlled Substance
It’s illegal to possess a controlled substance with the intent to sell or distribute. What you may not know is that you can be arrested for possession with the intent to sell even if you didn’t have the intent to sell. Many times, the fact that you’re in possession of a very large supply of drugs is enough to land you in serious trouble. Having a lot of drugs in your possession can create a presumption that you intended to sell.
Are you facing criminal charges for possession of a controlled substance with the intent to sell? You need to speak with an experienced criminal defense attorney immediately. Your future is on the line. Hiring an attorney will give you the best opportunity to protect it. Call The Rodriguez Law Group to find schedule a free consultation with our legal team. We’ll review your case and explain your rights.
Health and Safety Code Section 11351 HSC
Possessing a controlled substance is a crime. Possessing a controlled substance with the intent to sell is a more serious crime. Health and Safety Code 11351 HSC explains that it is unlawful to:
- Possess for sale, or
- Purchase for the purposes of sale
Any controlled substance or narcotic drug.
What Does the State Have to Prove?
The state has the burden of persuading a judge or jury that you were in possession of a controlled substance with the intent to sell. This will require proving:
- You unlawfully possessed a controlled substance or analog
- You knew that you possessed a controlled substance
- You intended to sell the drug or have someone else sell it, and
- You had a usable amount of the controlled substance.
Possession is one of the primary elements of this drug crime. You cannot be convicted if you did not have actual or constructive possession of a controlled substance or analog.
Actual possession means that you are in immediate physical contact and control of the drug. This includes when the drugs are in your hands, pockets, or backpack.
Constructive possession means that you have the ability to control the drug, even if it’s not in your immediate custody. For example, you would likely be considered to have constructive possession of drugs that are located in your home, car, or personal belongings.
You must have possession of a controlled substance or an analog. A controlled substance is any drug or chemical that is regulated by the government. Controlled substances are divided into five different schedules, or categories.
Schedule I Controlled Substances: Considered to have the highest potential for abuse and no accepted medical purposes. Schedule I drugs include:
- Peyote, and
Schedule II Controlled Substances: Considered to have a very high potential for abuse and/or physiological dependence. Schedule II drugs include:
- Pentobarbital, and
- Narcotics (including opium, codeine, and hydrocodone).
Schedule III Controlled Substances: Considered to have a “moderate to low” risk of addiction or dependence. Schedule III drugs include:
- Tylenol with Codeine
- Ketamine, and
- Anabolic steroids.
Schedule IV Controlled Substances: Considered to have a low potential for abuse and dependence. Schedule IV drugs include:
- Alprazolam, and
Schedule V Controlled Substances: Considered to have the lowest potential for dependence or addiction. Schedule V drugs include:
- Cough medicines containing codeine, and
Possession with the intent to sell, as defined in 11351 HSC, does not apply to marijuana. Marijuana crimes are regulated under separate statutes.
Analog of a Controlled Substance
It’s also unlawful to possess an analog of a controlled substance with the intent to sell. What is an analog? An analog either has:
- A chemical structure that’s very similar to a controlled substance; or
- Has (or is intended to have) an effect on the mind or body similar to that of a controlled substance.
In other words, an analog looks and/or acts like a controlled substance.
You cannot be convicted under 11351 HSC if you didn’t have the required knowledge to commit the crime. The state must prove that you knew:
- The drug was in your presence, and
- The drug was a controlled substance or analog.
Intent to Sell
How can the state conclusively prove that you intended to do something? In most drug cases, the state will rely on circumstantial evidence to prove intent.
Circumstantial evidence that may indicate you had an intent to sell a controlled substance can include:
- A large quantity of a controlled substance
- How drugs are packaged or bundled
- Possession of packing supplies, scales, and other tools used in the distribution of drugs
- Possession of an unusual amount of cash, and
- A lack of drug paraphernalia.
So, the state doesn’t necessarily have to prove that you had the specific intent to sell the drugs. Rather, it simply has to provide enough evidence to show that it is reasonable to that you had the intent to sell.
It’s important to remember that you don’t actually have to intend to sell the drug yourself. It is also a crime to possess the drugs with the intent for someone else to distribute and sell.
You can’t be convicted under 11351 HSC if you only possessed trace amounts of a controlled substance. You must have at least enough in your possession to be effective if used.
Penalties for Possessing a Controlled Substance With the Intent to Sell
Possession for sale of a controlled substance is a felony offense in California. However, the penalties for the crime will depend on any mitigating or aggravating factors that are relevant to your case. Factors that may affect the punishment for possession with intent to sell include:
- The quantity of a controlled substance or an analog in your possession
- The type of controlled substance or analog in your possession
- Absence or presence of packaging materials
- Absence or presence of drug paraphernalia, and
- Prior drug conviction(s).
Felony Possession With the Intent to Sell
Absent any aggravating factors, possession of a controlled substance with the intent to sell is punishable by two, three, or four years in a California state prison. The maximum prison sentence will increase to five years if you are found in possession of a cocaine base with the intent to sell.
Drug Quantity and Penalty
The quantity of the controlled substance in your possession may influence the amount of time you’re required to spend behind bars. Having more than 1 kilogram of a controlled substance will result in added time to your prison sentence.
- More than 1 Kilogram → Additional 3 years
- More than 2 Kilograms → Additional 5 years
- More than 0 Kilograms → Additional 10 years
- More than 20 Kilograms → Additional 15 years
- More than 40 Kilograms → Additional 20 years
- More than 80 Kilograms → Additional 25 years
Defending Charges for Possession With the Intent to Sell
Just because you’ve been arrested or charged with a crime doesn’t mean that you will be convicted. Prosecutors have to prove that you are guilty of possessing drugs with the intent to sell. In fact, they have to prove that you are guilty beyond a reasonable doubt. It can be very difficult to satisfy this burden of proof, especially if the state is relying on circumstantial evidence.
You can make the state’s job even more difficult by asserting a strong defense. Defenses that may help if you’ve been arrested for possession with intent to sell include:
- Lack of knowledge
- Lack of a controlled substance or analog
- No actual or constructive possession
- No intent to sell because the drugs were intended for personal use only, and
- Violations of your Constitutional rights.
Hiring an attorney will give you the opportunity to put forward the best defense. Our lawyers will attack the prosecution’s evidence, create doubt, and assert any argument that helps your case. Call our office to schedule a free consultation with our skilled legal team today.
Are you facing criminal charges for possession of a controlled substance with the intent to sell? It’s important that you understand your legal rights and options. Contact the criminal defense attorneys at The Rodriguez Law Group for help today. We will carefully review your case and answer any questions you have. Your future is on the line, so don’t hesitate to call for help now.
Last Updated on June 1, 2021