How to Defend Against Heroin Charges
Under California law, it's a crime to have possession, sell, transport, or manufacture heroin. Simple possession for the personal use of heroin is a misdemeanor crime, but selling or trafficking is charged as a felony offense that carries harsh legal penalties.
Heroin is a dangerous and highly addictive drug illegal in the United States. It is classified as a Schedule I narcotic, which means there are no accepted medical uses for heroin, and doctors cannot prescribe it.
California has enacted multiple laws that make it a crime to possess, use, transport, or sell heroin—or even be in the same room with a heroin user. It's also a crime to be under the influence of heroin.
Suppose you are convicted of personal possession of heroin. In that case, you might be eligible to participate in a California drug diversion program, including Proposition 36 which allows a defendant to get drug treatment and rehabilitation rather than serving jail time. And if you complete drug diversion, your heroin charges will be dismissed at the end of the program.
If you are convicted of a felony heroin-related crime, you could be facing up to 9 years in prison and fines up to $20,000 per offense. Our Los Angeles criminal defense attorneys will take a closer look at California's laws regarding heroin below.
What Are the Heroin Crimes and Penalties in California?
If you are arrested on suspicion of a heroin-related crime, you'll likely be charged with one or more of the following below, depending on the circumstances.
Under the Influence of Heroin - Health & Safety Code 11550 HS
It is a crime in California to use drugs recognized by the state as controlled substances, including heroin.
If you are suspected of being under the influence of heroin when stopped by police for any reason, you could be charged simply for being under the influence (HS 11550). This is a misdemeanor offense with a maximum fine of $1000 and up to 1 year in county jail.
Possession of Heroin for Personal Use - Health & Safety Code 11350 HS
The crime of "simple possession" (HS 11350) refers to knowingly and intentionally possessing any controlled substance (including heroin) for your personal use. According to California law, it doesn't matter how much heroin you have in your possession; even a small "bindle" or amount for personal use is still a crime.
Simple possession of heroin is typically charged as a misdemeanor with a maximum penalty of 1 year in county jail and fines up to $20,000. However, judges may also impose lesser penalties like probation.
However, suppose you have prior convictions for certain felonies like murder or specified sex crimes. In that case, your heroin charge could be upgraded to a felony resulting in up to 4 years in prison.
Possession of Heroin with Intent to Sell - Health & Safety Code 11351 HS
If you are caught with heroin, and the arresting officer or an investigator believes you will sell it, you could be charged with "possession for sale" of a controlled substance (HS 11351).
The amount of heroin in your possession is not relevant to the charges; even if you only have a small amount, the prosecutor can charge you with intent to sell if there is evidence that you intended to distribute it.
This crime is always charged as a felony in California and is punishable by up to 4 years in state prison and $20,000 in fines. However, if the amount of heroin in your possession exceeds 1 kg, you could face fines up to $8 million and between 3-25 additional years in prison if convicted.
Selling or Transporting Heroin - Health & Safety Code 11352 HS
If you are caught selling or transporting heroin, you will likely be charged with selling or transporting a controlled substance, a felony. The penalties for this crime depend on the amount of heroin involved in the sale or transport and how far it was transported.
For heroin in any amount, you could face up to 5 years in prison, up to 9 years if you transported it across two or more county lines, and fines up to $20,000.
If the amount of heroin exceeds 14.25 grams or you have prior convictions, the fines increase up to $50,000. However, if you are caught selling or transporting 1 kg or more of heroin, you could face an additional 3-25 years in prison and fines up to $8 million. The related offenses include defending cocaine, ecstasy, ketamine, methamphetamine charges, and bringing contraband into a jail or prison.
What Are the Related Crimes?
- Driving under the influence of heroin - Vehicle Code 23152 VC: driving under the influence of alcohol or any drug, including heroin, classifies as a DUI in California.
- Being present while someone uses heroin - Health & Safety Code 11365 VC: it's a misdemeanor in California even to be in the same room with someone using certain controlled substances, including heroin.
What Are the Drug Diversion Programs for Heroin Offenses?
Suppose you're charged with one of several minor heroin offenses. In that case, you may be eligible to participate in drug diversion under Penal Code 1000 PC, which typically includes completing an approved drug treatment program. This is known as deferred entry of judgment.
Upon completing the program, your charges are dismissed and the records sealed. Charges such as simple possession and being under the influence are eligible for drug diversion, while possession for sale, transport, and DUI is not. Other diversion options include Proposition 36 and a California drug court.
What Are the Common Defenses?
An attorney can employ several defenses that may have heroin charges either dismissed or reduced. These include:
- Illegal search and seizure. The accusations against you may be dropped if heroin is discovered on your body due to an unlawful search and seizure by police;
- You did not intend to sell. This defense often results in a reduction of charges from intent to sell to simple possession, which makes you eligible for drug diversion;
- Entrapment by law enforcement means you were coerced into committing a crime you would have otherwise not committed;
- Police misconduct of fabricating or altering evidence;
- Gaps in custody and chain of evidence;
- Irregularities in testing and determining drug type or form;
- Amount of drugs does not qualify for a sentence enhancement.
Early intervention into your case by our law firm can make a massive difference in the outcome of a heroin case. We are familiar with all the details of federal and state schedules, procedures, and criminal laws.
Through prefiling negotiations with law enforcement and the District Attorney's Office, we might be able to convince them not to file formal criminal charges before the first court date. This a known in the legal industry as a “DA reject.”
We know how to develop an effective defense strategy around the particulars of heroin chemistry, manufacturing, abuse, and tendencies of the government authorities who investigate, charge, and sentence defendant's in heroin cases.
We can also determine whether you are eligible for a California drug diversion program which gives you an opportunity for drug treatment rather than jail time. Successful completion of drug diversion will result in your charges being dismissed,
Eisner Gorin LLP is a top-rated criminal defense law firm based in Los Angeles County, and we serve people across the state of California. You can reach us for an initial case consultation by calling (877) 781-1570 or filling out the contact form.