16 Jul 21
Under California law, a drug crime can be charged as a misdemeanor or felony, depending on the circumstances of the case. The prosecutor considers several factors when determining whether to charge a drug crime as a felony or misdemeanor. A felony conviction is likely to lead to a prison sentence that could affect your life adversely. Therefore, you should contact an experienced criminal defense attorney immediately after the prosecutor convicts you of a drug crime. An attorney will help you fight the charges and possibly avoid a felony conviction.
Felony Drug Charges
Under California law, drugs fall under several categories, known as schedules. This classification is in line with the Federal Controlled Substances Act. The categorization classifies drugs based on their value against their potential for abuse and addiction. Schedule I drugs are the most harmful and dangerous drugs, and they include drugs like heroin. Schedule V drugs are the least harmful. Possession of marijuana for recreational use is legal under California law. However, Federal law classifies marijuana as a Schedule I controlled substance. Below are circumstances under which a person arrested for a drug crime may face felony instead of misdemeanor charges:
- Type And Quantity Of The Drug
The types of charges the prosecutor files against the defendant will depend on the type, and the amount of drug the defendant possesses. For instance, if you have a dangerous drug like cocaine and heroin, you will automatically face felony charges.
The prosecutor will also consider the extent of drugs possessed. You are likely to face felony charges if you have large quantities of a controlled substance.
- Possession for Personal Use or With Intent To Sell
Possessing a controlled substance for personal use could lead to misdemeanor charges, but possession of a drug for sale automatically leads to felony charges. The lawmakers consider the harm of each type of possession. If you possess a drug for personal use, you can only harm yourself with it. However, if you possess a drug for sale, you could supply it to other people and hurt them.
The Intent to Sell
The most crucial part in prosecuting a possession for sale charge is determining whether the defendant had the intent to sell drugs. You could face charges for possession of a drug for sale even if you did not intend to sell the drug personally. You could face charges even if you intended to have another person sell the drugs on your behalf. The jury could convict you of a lesser crime if the prosecutor shows that you possessed a drug but can’t prove that you had the intention to sell the drugs. A conviction for possession of a drug for personal use subjects you to less severe penalties and increases the likelihood of being subjected to a drug diversion program.
It is difficult for the prosecutor to prove intent to sell. While proving intent to sell, the prosecutor relies on circumstantial evidence that surrounds your case. The prosecutor will consider several factors while proving the intent to sell. They could also consult an expert witness like a narcotics officer to help determine whether the drugs were for sale. The factors that help distinguish possession for personal use from possession for sale are:
- The quantity of the controlled substance
- The packaging of the drug
- The presence or absence of drug paraphernalia
- Whether the defendant is under the influence
The prosecutor is likely to charge you with possession of a drug for sale if you possess a higher quantity of substance than the quantity an average person would consume. However, it isn’t easy to prove the intent to sell based purely on the extent of drugs the defendant has. For instance, if you are a habitual drug user, you may stock large quantities of a drug to ensure you don’t run out of supply. Therefore, having a large stock of drugs is not adequate evidence to prove possession for sale.
The most damaging evidence when determining intent to sell is the drug packaging. The prosecutor will assume that you intend to sell the drugs if the controlled substance is packaged in:
- Bundles
- Baggies
- Balloons
- Bindles
- Any other packaging related to drug sales
The law enforcement officers will assume that the drugs you possess are for sale if the packaging suggests. If the police find you with large quantities of drug packaging materials, they could assume that you sell drugs.
The presence of drug paraphernalia could make the prosecutor and the law enforcement officers assume that the drug is for personal use, thus helping you avoid felony charges. Drug paraphernalia may include syringes, pipes, and other instruments used to inject and ingest the drug. The presence of paraphernalia indicates that the drugs are for personal use. However, you could face felony charges if the police also find you with the following items:
- Measuring instruments
- Weighing scales
- Tools used in separating, diluting, and packaging drugs
The discovery of such items alongside the drug paraphernalia will strengthen the prosecutor’s evidence that you possessed the drugs for sale.
If you are intoxicated at the time of arrest, you are likely to face misdemeanor charges because the prosecutor will assume that you possessed the drugs for personal use rather than intending to sell them. However, this evidence may not be enough to prove that you did not intend to sell the drug because many drug dealers are also users. Therefore, the prosecutor will consider other factors that could indicate the intent to sell based on the current facts of the case.
- The Presence of Aggravating Factors
If you are currently facing drug charges, you are already in a difficult spot. However, you could even be in worse shape if the drug crime involves certain persons or you committed it in certain places. The prosecutor may charge the defendant with a felony drug crime if several aggravating factors are present. The presence of aggravating factors could make a drug crime that would otherwise have been a misdemeanor a felony charge. The aggravating factors that could lead to felony drug crime charges are:
- Committing a drug crime in a school, near a school bus stop, or in a school bus
- You are a repeat offender with prior drug convictions
- Committing a drug crime in or near a particular public building, including housing units, swimming pools, or on public transportation
- Committing a crime near a drug treatment facility
- Committing a drug crime in the presence of a minor below 18 years
The worst and the most common aggravating factor in drug crimes is selling drugs to a person below 18years. Having a minor sell drug is also a severe aggravating factor that could increase your charges.
It is an aggravating factor to sell drugs in public places, including public schools, places of worship, public parks, and places where senior citizens are, including senior centers, assisted living facilities, and nursing homes.
When you commit a second or subsequent drug crime, you are likely to face felony drug charges. First-time drug offenders are likely to face misdemeanor charges. You will face a longer jail term if the court convicts you of purchasing or possessing a controlled substance for sale and you have a prior felony conviction for a different drug crime involving more than the mere personal use of a drug.
Aggravating Factors Possession Of a Drug For Sale
It is an aggravating factor to possess or purchase cocaine base with the intent to sell. The penalties for this crime include a jail time of three, four, or five years in county jail. The court may also impose a hefty fine of up to $20,000.
You will face additional punishment if the court convicts you of possessing a controlled substance for sale (Health and Safety Code 11351 HS) and the substance involved is heroin, cocaine, or cocaine base:
- If the substance is more than one kg in weight, three years additional jail time
- Five years if the substance is more than 4kg
- Ten years if the substance is more than 10kgs
- Fifteen years if the drugs weigh more than 20kgs
- Twenty years if the substance weighs more than 40kg
- Twenty-five additional years if the substance weighs more than 80kg
The Penalties For Felony Drug Crimes
The penalties for felony drug crimes are more severe than the penalties for misdemeanor drug crimes. The specific punishment for a crime will depend on the type of felony drug crime you commit:
Felony Possession Of a Drug
The California Health & Safety Code 11351HS outlines that it is a felony offense to possess certain controlled substances for sale. The controlled substances include heroin, cocaine, LSD, and prescription drugs like codeine, Vicodin, and Oxycontin. The prosecutor can prove that you possessed a drug for sale if you have large quantities of the drug. Other signs are if the drug is packaged in a manner that indicates you intend to sell it, you have lots of money, especially in small denominations, and the presence of weighing scales. The prosecutor may also prove that you sell drugs if many people come to your place and leave after a few minutes. These could be customers coming to purchase drugs.
The penalties for possession of a drug for sale are:
- Two, three, or four years jail time in a county jail
- A fine not exceeding $20,000
If you have an experienced criminal defense attorney, the attorney can help you negotiate for probation and jail time of up to one year in county jail. You will not be eligible for drug diversion after a conviction under HS 11351.
Felony Sale or Transportation Of a Controlled Substance
The California HS 11352 makes it a crime to sell or transport a controlled substance, including heroin, cocaine, LSD, and peyote. It is important to note that California HS 11352 doesn’t apply to the sale of meth, marijuana, and other specific categories of drugs. According to HS 11352, it is illegal to:
- Sell drugs
- Transport controlled substances with intent to sell them
- Furnish or administer drugs to other people
- Give away controlled substances
- Offer to do any of the acts outlined above
Before 2014, the transportation of controlled substances included taking a controlled substance somewhere for your personal use. However, after the amendment of HS 11352 by the California legislature, it is only a crime to move controlled substances from one place to another, intending to sell them.
The violation of HS11352 is a felony offense. The consequences for the crime include:
- A jail time of three to nine years
- A fine that does not exceed $20,000
However, the jail time and the maximum fine could significantly increase if you sell drugs to a minor or transport large quantities of certain drugs.
Operating or Maintaining a Drug House
According to the California Health and Safety Code 11366 HS, it is an offense to maintain or operate any place to give away or sell controlled substances. The crime of operation of a drug house is a wobbler, meaning the prosecutor could charge it as a felony or misdemeanor. The prosecutor must prove that you maintained or opened a place with the intent of selling, giving away, or allowing people to use controlled substances in that place.
A place could mean an apartment or a house. A motel room or a hotel room could also qualify as a drug house. You will only face charges for this offense if you open or maintain a drug house to provide other people with the opportunity to use drugs. You will not face charges if you maintain or open a place for your drug activity.
It is also important to note that you should sell or give away controlled substances repeatedly or continuously for you to face charges for opening a drug house. If the provision or the sale of a controlled substance was a one-time thing, you would not face charges.
If the court convicts you of felony operation of a drug house, the penalties are:
- Imprisonment of up to three years in a state prison in California
- A fine that doesn’t exceed $10,000
Other penalties may include the confiscation of the property where the drug house was based.
Felony Laundering of Drug Money in California
According to the California Health and Safety Code 11370.9 HS, it is a crime to launder unlawful drug sales proceeds. Laundering involves concealing or disguising the source of the funds. The prosecutor will have to prove that you acquired, received, or engaged in a transaction involving money or property derived from a controlled substance. The prosecutor must also prove that you disguised or concealed the money’s source, ownership, and control. It should be evident that the amount you laundered was more than $25,000 within 30 days.
If the court convicts you of a felony, the penalties will include:
- Imprisonment of up to four years in a state prison
- A fine of up to $250,000 or twice the laundered amount, whichever is higher
Fighting Felony Drug Crime Charges
With the help of an experienced criminal defense attorney, you can use several legal defenses to fight charges for various felony drug crimes under California law:
Illegal Search and Seizure
You can fight felony drug charges if the law enforcement officers subject you to an illegal search and seizure. For example, you could be a victim of an unlawful search and seizure if:
- The police search your property without a valid California search warrant
- The police exceed the scope of the search warrant
- The officers detain or search you unlawfully without a probable cause
Police Misconduct
Police misconduct is also a common defense for many felony drug charges. For instance, in the felony crime of sale or transportation of a controlled substance, you may cite police misconduct if the police:
- Plant evidence, which involves placing drugs on a person, their vehicle, or their apartment to enable them to make an arrest
- Lying about the location of a controlled substance — For example, the police may lie that they found the controlled substance in your bag or pocket, yet the substance was on the ground close to where you were standing.
- Lying about the probable cause that made them arrest you
- If the police use excessive force to obtain evidence from you or obtain a confession
Police Entrapment
You can use this defense if you feel that the law enforcement officers coerced or lured you into committing an offense. It is common for the police to harass, coerce, and entice innocent people, making them commit a crime. For an officer’s conduct to qualify as coercion, it should be more than an offer or a suggestion. The police should have lured or coerced you in a manner that is difficult for a reasonable person to refuse.
You Had No Knowledge of the Crime
Lack of knowledge is also a common defense in certain felony drug crimes like the sale and transportation of a controlled substance. While citing this defense, you can state that you didn’t know about the presence of a drug. You can also say that you did not know that the item you transported or sold was a controlled substance.
Find a Criminal Defense Attorney Near Me
A felony drug crime conviction comes with severe consequences, including mandatory jail time, hefty fines, and ineligibility for a drug diversion program. Contacting an experienced criminal defense attorney will reduce the chances of a felony conviction. An attorney will present a defense and mitigating factors that could make the prosecutor charge the crime as a misdemeanor. If you need reliable legal representation in Van Nuys, CA, Leah Legal can help. Contact us at 818-484-1100 and speak to one of our attorneys.
