The Health and Safety Code of California has defined illegal drug possession as a criminal offense when an individual is found to have on their person or possession or within the immediate vicinity any illegal substances or controlled drugs specified under the law.
The conviction for this criminal offense carries with it payment of fines as well as imprisonment in either state or county jail. The determination of the amount of fines and length of jail time is dependent on the severity of the case, meaning the volume of drugs found as well as the accessory penalties imposable, which may include suspension or loss of the privilege to drive, confiscation of the proceeds of the crime being accused of, registration on the public registry as a narcotics offender, drug rehabilitation and mandatory community service. The amount or volume of the drugs is of no moment as even small quantities can merit severe penalties for each offense committed.
The following are the factors considered in the imposition of penalties for drug possession, which are:
- The quantity and kind of drugs in possession;
- The intent of the use, be it for recreational or for sale;
- The criminal record of the offender, especially when there are prior convictions for the same crime;
If the conviction were for a second offense, then penalty to be imposed would have an additional three years. For first time offenders of drug possession, the imposable penalty can be between actual prison time and/or attendance in a drug rehabilitation program. Should the treatment be proven successful, the drug possession charge would be dropped from the records of the accused.
The crime of drug possession is not absolute though as there are defenses to counteract them. One of the ways is the determination of the legality of such search and seizure yielding the drugs. If it has been proven that it was an illegal search, all the evidence collected would be declared inadmissible in court, allowing the case to be dismissed for insufficiency of evidence.
The peculiar aspect of this type of crime is the leeway allowed to police officers in determining the intent regarding the possession of the illegal drugs. One of the graver forms of the crime is possession with intent to sell or distribute. The following factors, when present, determine whether or not the case is simple possession or if the possession is with intent to sell or distribute:
- When the drugs found would be just a small amount, say a couple of ounces, then there is no intent to sell. Being a small volume, the presumption would be personal use. The reverse would hold true since the more of drugs are found, the intent to sell presumption grows in value.
- When during the seizure the drugs are found in individualized packets or containers, then the presumption of intent to sell is strengthened.
- When the arrest and seizure is made in a known drug drop off point, then the intent to sell would be presumed, unless the arrested individual is the known purchaser of the illegal contraband.
- When the drugs are found together with paraphernalia or if the arrested individual is under the influence of drugs at the time of the arrest, then the presumption of intent to sell does not prosper because the need to have a clear and lucid mind to make drug transactions.
- When the drugs are found together with money in small denominations, then the presumption of possession with intent to sell is strengthened. This means there have been previous transactions involving drugs. Also included in this presumption is finding a weapon in the drug cache.
The crime of illegal drug possession is a serious offense in California. Should you be or know anyone undergoing this process, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.