Drug Offenses in San Diego
Imagine that you are charged with a drug offense in Southern California, will you be charged under Federal or State law? Drug offenses are crimes under both Federal and State laws. So how do you know which jurisdiction you fall in? The determining factor for which of the two you are charged under will be the location of the offense. Generally, drug trafficking offenses occurring at the border will be charged under Federal law. This means that your case will be handled in downtown San Diego. Conversely, if you are facing state charges for drug trafficking in San Diego, your case will be handled in South Bay. The jurisdiction in which your case is tried will be very important to your defense because federal and state have different sentencing guidelines for drug offenses. Federal law classifies controlled substances into five schedules according to the substance's potential for dependency or abuse. The schedules are listed in the order of the most dangerous controlled substances, with schedule I drugs being the most likely to result in abuse and schedule V the least likely to result in dependency. Below you will find the Federal Schedules schedules and their California counterparts:
Schedule I / California Health and Safety Code section 11054
Controlled substances under this category are opiates.
Under Federal law these drugs are considered the most dangerous because of their level of dependency. Unlike, it's state counterpart, federal law does not recognize marijuana to have an accepted medical use.
Example: Marijuana, Heroin, Meth
Schedule II/ California Health and Safety Code section 11055
Controlled substances under this category are raw opium.
Under Federal law these drugs are considered fairly dangerous because they have a high potential for abuse.
Example: Morphine, Cocaine, Adderrol
Schedule III/ California Health and Safety Code section 11056
Controlled substances under this category are stimulants.
Under Federal law these drugs are considered moderately dangerous because they have a moderate level for abuse.
Example: Steroids, Testosterone, Tylenol with Codine
Schedule IV/ California Health and Safety Code section 11057
Controlled substances under this category are considered to have low potential for abuse.
Example: Zolpidem, Xanax, Valium
Schedule V/ California Health and Safety Code section 11058
Controlled substances under this category are considered the least dangerous when it comes to dependency and abuse.
Example: Smaller doses of Codeine, Robotussin, Lyrica
Drug Offenses Overview
Drug offenses can be charged as infractions, misdemeanors, felonies, or wobblers. A conviction under each type of charge will carry different penalties. In general, infractions result in monetary fines, misdemeanors carry up to one year in county jail and summary probation, felonies carry state prison sentences and formal probation. Wobblers are offenses that the prosecution has discretion to charge as either a misdemeanor or a felony. How a drug offense is charged will depend entirely on the nature of the offense, the type of controlled substance, the amount of drugs involved, and the purpose for possession. For wobbler drug offenses the prosecution will rely on aggravating factors to enhance a person’s sentence. It is your criminal defense attorney’s responsibility to counter the effect of these aggravating factors by identifying all the mitigating factors in your case and using them to dismiss the charges or to reduce your exposure at sentencing. In California, there are different alternatives to sentencing available to first time offenders with no priors for serious or violent offenses. If you are facing drug charges you need to retain an experienced local drug attorney that can explain to you the different options available to defeat your particular drug charge.
Understanding California Penal Code Section 1170
In consideration of the seriousness of violating Health and Safety Codes regulations of controlled substances, California has criminalized it under Penal Code section 1170. Under this law, “The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.”
Simple Drug Possession
Health and Safety Code section 11350 prohibits the possession of controlled substances for personal use. Simple possession of less than an ounce of marijuana will result in a fine of up to $100. Conversely, simple possession of all other controlled substances are misdemeanors in California. Which means that the maximum penalty you can face for a conviction of simple drug possession is one year of imprisonment and summary probation.
Exercising direct physical control of the controlled substance.
Having the right of control of the controlled substance.
Possessing the controlled substance at the same time as two or more people.
Proposition 47 for Drug Possession
Proposition 47 is a retroactive law that offers people with no prior serious or violent felony convictions the opportunity to reduce a wobbler or felony possession to a straight misdemeanor. This reduction to a misdemeanor could make you eligible for a drug diversion program in California. For example, possession of narcotics, hallucinogens and hashish are considered wobbler offenses that may result in a felony conviction. Your best bet to avoid these charges is to retain an attorney that can help you qualify for both proposition 47 and diversion.
Drug Possession for Sale
Health and Safety Code section 11351 prohibits the possession of controlled substances with the intent to sell. Possession for sale may result in prosecution as a felony, with a possible sentence of imprisonment ranging from sixteen months to three years and formal probation.
Intent to Sell:
Mental realization and desire to sell a controlled substance.
Health and Safety Code section 11379 prohibits the trafficking of controlled substances. Trafficking includes the unlawful transportation, distribution, buying and giving away of controlled substances. This offense may result in felony sentencing of three to five years in state prison, a maximum fine of $20,000 and formal probation.
The moving of controlled substances from one place to another regardless of how insignificant the distance of the move.
Health and Safety Code section 11379.6 prohibits the production of controlled substances. Production includes the cultivation and manufacturing of controlled substances. Possession of ingredients used to manufacture PCP or methamphetamine, with the intent to manufacture either drug, can result in a felony sentence of two, four, or six years of imprisonment, a maximum fine of $50,000, and formal probation.
Dominion, control, or ownership of a controlled substance.
Intent to Manufacture:
Mental realization and desire to manufacture a controlled substance.
Diversion Programs in San Diego
Every diversion program will need a referral from the court. Every one of these programs are a non-profit that are getting money from the county and state for offering a service to the public. At times you may be able to negotiate getting into one of these programs early before your criminal case starts to try and save time on the back-end. It is important to discuss this option with your attorney at the beginning of your case once charges are initially brought. It is often tough getting around the referral from the court requirement, but it can still be done with an experienced attorney.
Most diversion programs will initially want you to complete an orientation where the counselor will tell you everything about the program and set a schedule. After orientation and once the program starts you will be required to complete an individual assessment to evaluate your drug or alcohol use and understand way to change based on an individualized treatment plan. While you are completing the treatment plan created by the counselors, you will be required to attend individual and group counseling sessions to discuss ways to create a more positive lifestyle change and understand the root cause of your problem. The last phase of any diversion program is an exit interview where you will be given the proof of completion to show to the judge on your scheduled court date for the dismissal! If you make any mistakes and discharged during the course of the program it is important to get re-instated so that you can obtain a copy of that diversion certificate of completion.
PC 1000 is a way for first time drug offenders to avoid going to jail and from incurring a criminal record. Let’s say that a person without a criminal record is charged with possession of drugs but not with the intent to sell or manufacture. That person, under PC 1000 may plead guilty to possession and attend a four month class that meets once a week instead of spending time in jail. Once that person has successfully completed the class and 18 months have passed without another criminal arrest or conviction, and all fees associated with the case have been paid, the court dismisses the original case.
Prop 36 is for people who have incurred new charges for drug possession or use offenses that do not qualify for PC 1000. However, in order for a person to qualify for Prop 36, he or she cannot be charged with the sale, manufacture, or any other non-drug crimes at the same time. However, offenders can be excluded from consideration under Prop 36 if they have a prior conviction for a serious or violent felony (a “strike”), unless they have served their prison time and have been out of prison for five years with no felony convictions or misdemeanor convictions involving violence. Those people who are currently on probation can use Prop 36 if the violation of probation allegation itself qualifies for Prop 36.
Defenses to Drug Charges
A patient or a caregiver using marijuana for medical purposes with the approval or recommendation of a physician licensed in California may legally possess, transport and cultivate marijuana for personal use.
ex: You have serious medical condition and have a prescription for the drugs that was issued by a licensed physician.
Improper Police Conduct
ex: The seizure of the drugs resulted from an unlawful search.
Blind Mule Defense
Participation in the offense was unwitting or coerced.
ex: The drugs are not yours, you did not know they were there, they were planted by someone else.
Participation in the offense was forced by an immediate threat of serious bodily harm or death, there was no reasonable opportunity to escape the threat.
ex: Your life was threatened for you to commit the offense.
Contact San Diego Drug Offense Criminal Defense Attorney Vik Monder for a FREE consultation today at: 619-405-0063
Q: How are drug offenses charged?
A: Drug offenses are charged as infractions, misdemeanors, felonies, or wobblers. Each type of charge carries its own distinct penalties. For example, a drug infraction will result in paying the court monetary fines. Whereas a misdemeanor drug conviction can carry anywhere from six months to one year in county jail and may require summary probation. A felony drug conviction on the other hand, will carry state prison sentences and require formal probation. If the alleged offense is a wobbler drug offense, then the prosecution has discretion to decide the severity of the charge and may file either a misdemeanor or a felony.
Q: How are drug charges decided?
A: The severity of the charges for drug offenses will be decided by the issuing attorney. The prosecution’s decision will be based entirely on the nature of the offense, the type of controlled substance, the purpose for your possession, and amount and quality of the drugs involved. For wobbler drug offenses, the prosecution will rely on any aggravating factors that exist in your case to enhance your sentence.
Q: What are considered aggravating factors for drug charges?
A: Some of the most common aggravating factors that the prosecution relies on to enhance your sentence in drug offense cases are the existence of large amounts of cash, large quantity of drugs, packaging of drugs into separate baggies, measuring scales, the number of visitors coming in and out of your home and the length of their visit.
Q: What are the elements of drug possession?
A: Simple drug possession under Health and Safety Code section 11350 is the:
- the exercise of control of or right of control
- of a sufficient amount of a controlled substance
- with knowledge of the presence of the controlled substance
- and knowledge of the drug’s nature as a controlled substance
- without a valid prescription from a licensed professional in California
Q: What are the different types of possession?
A: Simple drug possession has three different types of possession, actual, constructive and joint possession. Actual possession means that you had direct physical control of the controlled substance. Whereas constructive possession implies that you had the right of control of the controlled substance. If you had joint possession that means that you and at least one other person possessed the controlled substance at the same time.
Q: What must the prosecution prove for simple drug possession?
A: The prosecution has the burden of proving beyond a reasonable doubt that you unlawfully possessed a controlled substance. That at the time of your actions, you knew that the drugs were present and that they were a controlled substance. Lastly, that you possessed a usable quantity sufficient to be used.
Q: What penalties am I looking at if convicted of misdemeanor drug possession?
A: Simple drug possession when charged as a misdemeanor offense in California can result in a fine of up to $1,000 and/ or up to one year in county jail, summary probation.
Q: What must the prosecution prove for felony drug possession?
A: The prosecution has the burden of proving beyond a reasonable doubt that you unlawfully possessed a usable quantity of a controlled substance. That at the time of your actions, you knew that the drugs were present and that they were a controlled substance. In addition, that you either have at least one prior serious and/or violent felony conviction or have at least one prior conviction requiring sex offender registration.
Q: What penalties am I looking at if convicted of felony drug possession?
A: Drug possession when charged as a felony offense in California can result in sixteen months, two or three years in state prison and formal probation for at least one year.
Q: What are the defenses for drug possession?
A: If you are being charged with simple drug possession you cannot be convicted if you had a valid prescription for the drugs, you did not know that the drugs were there, you did not know that the drugs were a controlled substance, or you did not have a right to control the drugs.
Q: What are the implications of Proposition 47 for drug possession cases?
A: California Proposition 47 is a retroactive law that offers relief to people who are facing felony drug possession charges, have been convicted of felony drug possession and are serving out their sentence, or have completed their sentences for felony drug possession convictions. The relief comes in the form of refiling, resentencing and reclassification of a felony drug possession offense to a misdemeanor offense. It is also important to note that under Proposition 47 there are no enhancements for repeat drug offenders so the prosecution can only charge you with a misdemeanor for simple drug possession regardless of how many times you are charged with this offense.
Q: Who is not eligible for relief under Proposition 47?
A: Not every person with felony drug possession charge or conviction is eligible for this relief. If you have prior convictions for serious or violent crimes or are registered as a sex offender you will not be eligible for relief under Proposition 47.
Q: What is the difference between simple possession and possession with intent to sell?
A: The difference between simple possession and possession with intent to sell is the intent that you have at the time of the offense. Simple possession is the knowledge, dominion, and control of a controlled substance. The intent that is required for the conviction of simple possession of a controlled substance is general intent. This means that your subjective mental state will not matter to the prosecution. Unlike simple possession, the intent required for a conviction of possession with intent to sell is specific intent. This means that in addition to possession, the prosecution must be able to prove that at the time of the offense you had the subjective mental state of mind to decide to sell or distribute the controlled substance to other people.
Q: What is Proposition 1000?
A: California Penal Code section 1000 is a drug diversion program for first time drug offenders that allows them to complete a court ordered drug rehabilitation program in lieu of jail time. It is important to note that diversion under Proposition 1000 is not statutorily required. This means that your eligibility for the program is entirely at the prosecutor’s discretion.
Q: What are the conditions of Proposition 1000?
A: If you are found eligible for proposition 1000, you would be required to plead guilty, successfully complete the rehabilitation program assigned to you by the court and stay out of trouble with law enforcement for eighteen months. At the end of the eighteen months, the court will dismiss your case and you will not have to incur a criminal record.
Q: Who is not eligible for diversion under Proposition 1000?
A: To qualify for diversion under Proposition 1000 the alleged offense charged must not involve narcotics, restricted dangerous drugs, a crime of violence or threatened violence. You may not have had your probation or parole revoked without thereafter completing it. In addition, your record cannot indicate that you have had a prior felony conviction or been placed on diversion or deferred entry of judgment within five years prior to the alleged commission of the charged offense.
Q: What is Proposition 36?
A: Proposition 36 is an alternative program for those individuals who do not qualify for diversion under Proposition 1000 and are convicted of nonviolent drug possession offenses. Proposition 36 allows the court to sentence you to probation and order a drug rehabilitation treatment as a condition of your probation in lieu of imprisonment.
Q: What are the conditions of Proposition 36?
A: If you are found eligible for proposition 36 you would be required to plead guilty, at your sentencing you will be ordered to up to one year of a drug treatment program in the community and up to six additional months of follow up care. The drug treatment program you enroll in must be licensed and certified by the state of California. In addition, the court may require that you take vocational training, family counseling, and complete community service as conditions of your probation. Upon successful completion of probation conditions, you may petition the court to dismiss the charges against you.
Q: Who is not eligible for Proposition 36?
A: If you have a prior conviction for a serious or violent felony that was considered a strike under California’s Three Strikes law, you are not eligible for Proposition 36. However, there is an exception if you have served out your sentence, been released from prison for five years and had no other felony or misdemeanor convictions involving violence.
Q: What are the elements for drug manufacturing?
A: Drug manufacturing under California Health and Safety Code section 11379.6 is the:
- dominion, control, or ownership
- of the controlled substance
- with the specific intent to manufacture the illicit substance
Q: What are the specific enhancements for drug manufacturing?
A: An enhancement is an offense whose commission alone increases the penalties for the underlying crime. If convicted for drug manufacturing, the prosecutor could request more severe sentencing due to the large quantities of the controlled substance, the presence of children where the manufacturing took place, great bodily injury or death of another person, and your criminal history of related drug priors.