The Crime of Possessing Drugs for Sale in California - HS 11351
Health and Safety Code 11351 HS makes possession for sale of a certain controlled substance a serious felony crime in California. If the prosecutor is able to prove you had possession of drugs with the intent to sell them, you will be facing severe penalties.
The list of narcotics covered under HS 11351 includes all drugs covered by the Federal Controlled Substances Act, including:
- hallucinogenic substances.
Also, you could face prosecution under Health and Safety Code 11351 HS if you possessed specific prescription drugs, such as oxycodone, if the prosecutor can prove you had intent to sell them to others and didn't have a valid prescription.
In order to give readers a better understanding of drug possession with intent to sell laws, our Los Angeles criminal defense lawyers are providing a review below.
What is Drug Possession?
Just like the name implies, possession for sale of narcotics is significantly a possessory crime. Thus, a prosecutor can attempt to prove “possession” either through:
- actual possession, or
- constructive possession.
Obviously, a defendant has actual possession of a controlled substance if it's found on their person, such as in their pocket or personal belongings.
In some HS 11351 drug sales cases, actual possession is difficult to prove. So, a prosecutor will attempt to obtain a conviction by showing constructive possession.
A defendant has constructive possession a controlled substance when the drugs are in a location in which the defendant has control over it, such as their home or car.
In order to convict you of possessing a controlled substance for sale under California Health and Safety Code 11351 HS, the prosecutor has to prove (CALCRIM 2302):
- you were in possession of the drug, and
- you knew the substance's nature or character as a controlled substance.
The prosecution has to prove you were aware of the drug's presence. This means if you had no knowledge of the presence of the drug either on your person or are area you had control over, then you will probably avoid a conviction.
Also, the prosecutor has to show that you knew the substance you possessed was capable of being used as a narcotic, but they don't have to prove you knew the actual substance you possessed.
Finally, there has to be enough of the controlled substance to sell. A “usable amount” is any quantity that is large enough to be used by somebody as a controlled substance.
Traces or drug residue of a drug are not sufficient for a prosecution under HS 11351.
How Can Intent to Sell the Drug Be Proven?
In order to be convicted of Health and Safety Code section 11351 HS, possession of a controlled substance for sale, the prosecutor has to be able to prove you had the intent to sell.
In other words, selling the controlled substance for money or anything of value. The prosecutor must have actual proof that your intent was to sell the drugs rather than just having possession for personal use.
The most common ways a prosecutor will attempt to prove you had intent to sell include:
- You possessed a large enough amount of the controlled substance that would not be reasonable considered an amount for only personal use;
- The presence of sales paraphernalia such as scales, baggies, large amounts of cash, scale to weigh the drugs, etc.;
- There were many different people visiting your residence at all hours of the day and only staying for a few minutes.
In cases of undercover police sting operations and controlled drug buys, proving intent to sell is much easier.
The prosecutor doesn't have to prove an actual drug sale occurred to charge someone with possession with intent to sell under HS 11351.
What are the Penalties for HS 11351 Drug Sales?
If you are convicted of possession of a controlled substance with intent to sell in violation of Health and Safety Code 11351 HS, it's a straight felony under California law.
The penalties for a defendant who has been convicted under this section include:
- two, three, or four years in the county jail, and/or
- court fines and fees up to $20,000;
- felony probation with no jail time.
If you are placed on felony probation, you will be required to complete community service hours, complete substance abuse classes, and meet with a probation officer monthly.
Unlike a case of simple HS 11350 drug possession case, a conviction for drug sales makes the defendant ineligible for a drug diversion program.
Also, there are sentencing enhancements for possession of extremely large amounts of narcotic substances.
What are the Related California Offenses for HS 11351?
Health and Safety Code 11352 HS – sale and transportation of a controlled substance,
Health and Safety Code 11360 HS – marijuana for sale,
Health and Safety Code 11370.1 HS - drug possession while armed
Health and Safety Code 11370.6 HS – possession of drug money,
Health and Safety Code 11377 HS – possession of methamphetamine,
Health and Safety Code 11378 HS – possession of meth for sale,
Health and Safety Code 11379 HS - sale and transportation of a methamphetamine,
Health and Safety Code 11379.6 HS – manufacturing a controlled substance.
How Can I Fight HS 11351 Drug Sales Charges?
If you were charged with drug sales in violation of Health and Safety Code 11351 HS, our Los Angeles criminal defense lawyers can use a variety of strategies in order to obtain the best possible outcome. Some common defenses include:
- lack of intent to sell,
- lack of control or drug possession,
- lack of knowledge,
- illegal search and seizure,
- false allegation.
One of the most common defenses against drug possession with intent to sell charges is to show the drugs involved were possessed for only personal use.
Clearly, this defense does not render the conduct lawful, but avoids the much more serious penalties for drug sales.
Lack of possession
Recall from the elements of the crime above that the prosecutor has to prove you had possession or control over the drugs.
We might be able to make a reasonable argument you didn't have the required possession or control of the drugs in order to obtain a conviction.
Contact Eisner Gorin LLP If Charged with Drug Sales
If you or a family member has been arrested for, charged with, or has a pending trial for a charge of possession of narcotics with intent to sell under California Health and Safety Code Section 11351 HS, contact our team of experienced Los Angeles criminal defense attorneys for an initial consultation.
We will review the details of you drug sales case and provide advice on the steps to take to maximize your chances of a positive outcome.
Through prefiling intervention, we might be able to avoid the formal filing of charges or get the charges reduced after negotiation with prosecutor.
Eisner Gorin LLP is a top-ranked criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main office is next to the Van Nuys Court at 14401 Sylvan St #112 Van Nuys, CA 91401. Call our office to review your case at (877) 781-1570.