The Crime of Possessing Drugs While Armed In California - HS 11370.1
California Health and Safety Code 11370.1 HS makes it a felony crime for someone to possess a usable amount of a controlled substance while being armed with a loaded and operable firearm.
A conviction under this statute carries severe penalties, including up to 4 years in a California state prison and a large fine.
Also, a conviction means a defendant is ineligible for a California drug diversion program, such as Proposition 36 or deferred entry of judgement (DEJ) under Penal Code 1000 PC.
It's important to note that in order to be prosecuted under HS 11370.1, there is no requirement that a defendant:
- actually uses the firearm;
- threatens someone with the firearm, or
- brandish the weapon.
This means the simple possession of the loaded and operable firearm, and the controlled substance at the same time, is sufficient for prosecution under HS 11370.1, possession of a controlled substance while armed.
In order to give readers a better understanding of this statute, our Los Angeles criminal defense lawyers are providing a detailed review of HS 11370.1 below
What Factors Must Be Proven for a HS 11370.1 Conviction?
In order for a prosecutor to obtain a conviction for violating Health and Safety Code 11370.1, possession of drugs while armed, they must prove several different factors.
These are commonly known as the “elements of the crime” and listed under CALCRIM 2303 Jury Instructions:
- defendant possessed a useable amount of a controlled substance, meaning a small amount of residue is not likely sufficient for a conviction;
- the substance has to be unlawful to possess, for example, if defendant had a valid prescription, they are not guilty under this statute;
- defendant knew the substance's nature as a controlled substance;
- while defendant was in possession of a controlled substance, they had a loaded and operable firearm accessible and available for immediate use.
Clearly, each of the important elements of the crime can be litigated at a trial. In some cases, it's difficult for a prosecutor to prove the firearm was operable at that moment.
In other cases, perhaps the firearm was possessed in a manner that made it not readily accessible, such as in a locked compartment making it not immediately available for either offensive or defensive use.
What are the Penalties for Drug Possession While Armed?
If you are convicted of violating California Health and Safety Code 11370.1, possession of a controlled substance while armed, it's a felony offense punishable by:
- two, three, or four years in California state prison,
- a $10,000 fine, or both.
As stated above, Health and Safety Code 11370.1 HS is a straight felony, not a “wobbler,” meaning it can't be reduced to a misdemeanor.
This means plea bargaining with the prosecutor in possession of a controlled substance while armed cases is crucial. For example, seeking a reduction of the charges to a less offense such as simple drug possession which can be filed as a misdemeanor drug crime.
Formal felony probation
You might be eligible for formal felony probation rather than jail time. If the judge grants probation, you could be required to spend up to one year in a county jail, but under supervision of the court for up to three years. You will have to follow certain conditions of probation:
- monthly meetings with a probation office;
- drug counseling, treatment, and testing;
- complete community service hours (Caltrans);
If you violate any of the terms and conditions of your felony probation, the judge could revoke probation and sentence you to jail time.
What Are the Related California Crimes for HS 11370.1?
Health and Safety Code 11350 HS - possessing a controlled substance,
Health and Safety Code 11351 HS – possession of drugs with intent to sell,
Health and Safety Code 11352 HS – transporting a controlled substance,
Penal Code 25400 PC – carrying a concealed firearm,
Penal Code 25850 PC – carrying a loaded firearm.
How Can I Fight Drug Possession While Armed Charges?
If you were charged with possession of a controlled substance while armed in violation of HS 11370.1, our Los Angeles criminal attorneys will need to review the details in order to develop an appropriate strategy. Some of the common defenses include:
- lack of knowledge of firearm's presence;
- lack of knowing possession of a controlled substance;
- illegal search and seizure;
- firearm was not loaded and/or operable.
Clearly, our goal as criminal lawyers are to create some reasonable doubt as to each of the elements listed above.
We might be able to make an argument you lacked knowledge of the firearm's presence and thus didn't have knowing possession of the firearm.
Maybe we can argue you were not in knowing possession of the controlled substance found by police.
Due to the nature of a possession of drugs while armed case, there might be valid defense arguments of an unlawful search and seizure.
Motion to suppress evidence – PC 1538.5
In some cases, a motion to suppress evidence under Penal Code 1538.5 PC could be filed in court to make an argument law enforcement didn't have sufficient probable cause to search or they acted inappropriately.
If the motion to suppress is granted by the judge, it will most likely result in prosecutor dropping the charges because they simply won't be able to prove their case against you.
Criminal Defense For California Drug Crime Charges
If you or a family member was charged with the felony crime of California Health and Safety Code 11370.1 HS, possession of a controlled substances while armed, contact our law firm to review the details.
Our experienced Los Angeles criminal defense lawyers can guide you through the case process in order to obtain the best possible outcome.
Through prefiling intervention, it might be possible to convince the prosecutor to avoid filing formal criminal charges before court.
It might also be possible to get the charges reduced or dismissed while the case is proceeding through the criminal court process.
The top-ranked criminal defense law firm of Eisner Gorin LLP is located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main office is right next to the Van Nuys Superior Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our office for a consultation at (877) 781-1570.