The term “drug possession” refers to the simple act of possessing illicit substances on your person, in your vehicle, or your home. Most drug possession arrests occur from traffic stops when police establish probable cause of drug possession, such as seeing illegal substances in plain view in the suspect’s vehicle or physical evidence that the driver is intoxicated with an illegal drug.
State legislators recently passed Proposition 47 after California voters approved the new measure. Proposition 47 reduced the minimum penalties for most drug possession charges to the misdemeanor level to streamline court resources and minimize time spent pursuing convictions in relatively minor drug possession cases. However, do not take this change as a reason to assume your drug possession charges will lead to a minimum sentence. Depending on whether any aggravating factors are present in your case, the type of drug you possessed, and the quantity, it’s possible to face several additional charges based on the details of your case.
The Drug Enforcement Agency (DEA) of the United States enforces a scheduling law that defines different types of illegal substances based on perceived medical value, the potential for abuse, potential for addiction, and the possibility of the substance causing adverse medical effects from consumption:
- Schedule I drugs are considered to have no medical value and a high potential for abuse. Examples include heroin, cocaine, and lysergic acid diethylamide (LSD).
- Schedule II drugs have medical applications in controlled situations but carry a high potential for abuse. Examples include morphine, methadone, and many other narcotics.
- Schedule III drugs have clinically established medical value but are only legally available with a prescription from a doctor. Examples include anabolic steroids, ketamine, and Tylenol with codeine.
- Schedule IV drugs have medical value but carry some potential for abuse and addiction. Examples include prescription painkillers, barbiturates, and benzodiazepine-based medications.
- Schedule V drugs include drugs that have medical value and hold some potential for abuse but are generally less controlled than Schedule IV drugs. For example, certain cough syrups with low doses of codeine are Schedule V drugs.
Drug possession charges escalate based on the schedule of the drug involved. For example, an individual arrested for drug possession of a Schedule I drug will face more severe penalties than an individual arrested for possession of a Schedule II drug. California’s Proposition 47 changed the mandatory minimum sentencing standards for most drug possession charges. However, it is still possible for drug possession to lead to significant penalties, including fines, jail time, mandatory substance abuse rehabilitation, probation, community service, and personal consequences. Even when prosecuted at the minimal misdemeanor level, California’s penalty for drug possession could include up to one year in jail plus fines and other financial penalties.
California state prosecutors file charges and pursue convictions in criminal court, and the prosecution has the burden of proof in any criminal case. This means that the prosecution must prove the defendant is guilty “beyond a reasonable doubt” by providing physical evidence and witness testimonies. Criminal prosecutors may also bring expert witnesses into some cases that require professional input regarding complex technical matters.
To succeed with a drug possession conviction, California prosecutors must:
- Prove that the substance in question is a controlled substance scheduled by the DEA.
- Prove the defendant possessed a usable amount of the substance, meaning more than residue.
- Prove the defendant knew the substance was a controlled substance that was illegal for them to possess.
- Prove the defendant unlawfully possessed the substance in question, meaning it was always illegal for the defendant to possess the substance or that the defendant lacked the necessary doctor’s prescription to lawfully possess the substance.
- Prove the defendant knew of the presence of the substance or that the substance was within their reasonable control.
“Reasonable control” often comes into play as a legal concept in drug possession cases. For example,California state prosecutors can characterize drug possession charges in three possible ways:
- Simple possession, or actual possession, is the most commonly cited form of drug possession. This describes any situation in which a defendant is arrested for having illegal drugs on their person, such as in a handbag or a pocket of their clothes.
- Constructive possession refers to any situation where the defendant has reasonable control over the drug, but the drug is not on their physical person. Examples of constructive possession could include possessing illegal drugs in a car, a gym locker, or inside the defendant’s home.
- Joint possession is a combination of actual possession and constructive possession, referring to any situation in which two or more people share constructive and actual possession of an illegal drug. For example, keeping illegal drugs in a shared living space for two people who know of the drug and its illegal nature qualifies as joint possession.
To secure a drug possession conviction, the prosecutors filing the case must define the type of drug possession that occurred and meet the standard of proof of guilt beyond a reasonable doubt. Depending on the circumstances of the defendant’s arrest, the prosecution may attempt to add more charges on top of the drug possession charge. For example, if the defendant held a large amount of cash and a firearm on their person, they could face possession with intent to sell, drug trafficking, and weapons-related criminal charges. Suppose you are arrested for any drug possession in San Diego, CA. In that case, it is vital to understand your rights and the defenses available to you if you want to avoid conviction, or at the very least, minimize your sentence.
Every American citizen has constitutional protections that come into consideration when an individual is accused of a crime. The Fifth Amendment of the US Constitution protects from self-incrimination, giving suspects the right to remain silent upon arrest. The Sixth Amendment guarantees a suspect legal counsel when facing criminal charges, even if they cannot hire a private defense attorney.
If you are arrested for drug possession in the San Diego area, it’s vital to understand and exercise both rights to their fullest extent. Upon arrest, the police will read you your Miranda rights, informing you that you have the right to remain silent and that anything you say can and will be held against you in a court of law. Exercise this right and do not say anything, even if you feel compelled to try to explain away the situation in an attempt to avoid arrest. They will also notify you that you have the right to legal counsel, and if you cannot afford an attorney, the court can provide one at no cost. Public defenders provide legal counsel to individuals accused of crimes when they are unwilling or unable to pay for private defense representation. While you may think that a public defender equates to free legal counsel, you need to know the difference between what you can expect from a public defender and what an experienced private defense attorney can provide.
Most public defenders manage multiple cases simultaneously, meaning they can’t provide a single client with much individual attention. The majority of public defenders are skilled and competent attorneys but must manage heavy caseloads. A private defense attorney will charge legal fees, but in return, you will receive more robust, individualized legal counsel through every phase of your case.
California has some of the most permissive marijuana laws in the United States, and with the passing of Proposition 64 in 2016, recreational marijuana for adults over 21 was decriminalized. As a result, it’s legal for adults over 21 to purchase, possess, and consume marijuana for recreational purposes with some restrictions. Medical marijuana is also available to patients with qualifying medical conditions. Proposition 64 also allows for the private cultivation of marijuana plants for personal use with some restrictions.
Many have mistakenly assumed that Proposition 64 effectively provides carte blanche for adult marijuana consumption in California, but this is untrue. It is still possible to face criminal charges related to marijuana, but simple possession has been completely decriminalized. In addition, a driver can face criminal charges for driving under the influence (DUI) if they test positive for cannabis after a lawful arrest for DUI. It’s also possible to face criminal charges for breaking the Proposition 64 rules concerning the private cultivation of marijuana or for privately selling cannabis without an appropriate business license.
If you are arrested on drug possession charges in San Diego, CA, it’s vital to know your rights and the value of reliable defense counsel on your side. While a public defender may offer legal representation free of charge, you can secure a much higher level of legal counsel from a private San Diego drug possession attorney. A public defender could potentially guide you through a simple possession case with a satisfactory result, but if your case involves aggravating factors or additional charges aside from the possession charge, it’s best to work with an attorney who can provide a robust level of defense representation you will need to navigate this type of difficult case as successfully as possible.
In any criminal case, the defendant’s conviction depends on the quality of the prosecution’s evidence and their ability to establish the defendant’s guilt beyond a reasonable doubt. Your San Diego drug possession lawyer’s job is to attack the prosecution’s evidence, calling its credibility and admissibility into question, and to provide all exculpatory evidence that could lead to your charges being dropped, an acquittal, or a reduced sentence.
In some cases, the prosecution may not have the evidence necessary to establish the defendant’s guilt beyond a reasonable doubt. In other cases, the prosecution could have substantial evidence and a case that’s seemingly quite difficult to confront. Your San Diego drug possession attorney will help you determine the best approach to your defense. Some of the most commonly cited defenses in drug possession cases filed in San Diego, CA, include:
- Valid prescription. If you are accused of unlawfully possessing a controlled substance that is available with a doctor’s prescription, you can beat the possession charge by proving you had the required prescription or that the prosecution cannot prove you did not have the required prescription.
- Denial of the nature of the substance. If your attorney can prove the substance in question was not a controlled substance, this can be sufficient for having the drug possession charge dropped.
- Lack of awareness. A prerequisite of drug possession under California state law is that the defendant must know the substance in question is illegal to own, and they must know they have it within their possession. Therefore, your attorney may seek to prove you were unaware of the presence of the drug.
- Lack of ownership. Your attorney may help you prove that the substance in question belonged to someone else.
- Illegal search and seizure. If the evidence of drug possession was uncovered illegally, such as an unlawful search of your person or property, this violation of your constitutional rights could lead to dropped charges.
- Lack of control. If the drugs in question were never under your direct or constructive control, your attorney could bring attention to this fact to disprove the prosecution’s assertion of illegal possession.
Ultimately, there are several ways you could potentially fight a drug possession charge in San Diego. The sooner you begin working on your defense, the better your chances will be of avoiding conviction or, at the very least, minimizing your sentencing. If you are ready to discuss your defense options with a reliable and experienced San Diego drug possession attorney, contact Zentz & Zentz today and schedule a consultation with our team.