Just as addiction issues are common, so are drug charges. Fortunately, it is far less common today for narcotics offenses to send defendants to prison than it was during the peak of the War on Drugs. At present, addiction is more often seen a disease best suited for treatment rather than incarceration. As such, a drug case is often a fixable problem and one which can prompt much needed attention on the defendant’s bigger issue of addiction.
Simple possession of illegal narcotics (Health and Safety Code §§ 11377, 11350, 11357, Business and Professions Code § 4060) or of paraphernalia (Health and Safety Code § 11364) is a misdemeanor, unless the defendant is a sex offender registrant (Penal Code § 290) or has certain prior violent convictions. Being under the influence of a drug (Health and Safety Code § 11550) is also treated as a misdemeanor.
Felony charges can be brought based on allegations of sales or transport activity or possession with the intent to sell or transport (Health and Safety Code §§ 11351, 11351.5, 11352, 11359, 11360, 11370.6, 11378, 11378.5, 11379, 11379.5). Such allegations are usually based on evidence of sales or transport activities, the possession of larger quantities of or individually packaged narcotics, cell phone data, or intercepted communications.
Felony or misdemeanor charges may also be brought based on allegations of drug manufacturing (Health and Safety Code § 11379.6) or unlawful cultivation activity (Health and Safety Code § 11358). Knowingly leasing space for manufacturing, storing, or distributing controlled substance can also result in a felony or misdemeanor charge (Health and Safety Code § 11366.5).
Defenses to drug charges include whether the seized substance was actually an unlawful narcotic, whether it was a useable amount, or whether the defendant had the required knowledge or intent. In addition, a motion to suppress evidence based on law enforcement’s violation of the Fourth Amendment or the California Electronic Communications Privacy Act can result in a dismissal in some cases.
If a drug case cannot be defeated, a defendant can often opt for treatment over traditional penal consequences and eventually earn a case dismissal under drug diversion, deferred entry of judgment, or Proposition 36 programs.
If a felony conviction is unavoidable, the penalties are generally less serious than those for felony crimes against persons. Possession with intent to sell carries a three-year maximum term, while actual sales or transport carries a maximum of five years. Manufacturing can reach up to seven years. A prior felony conviction for a drug-related crime can bring an additional three-year enhancement (Health and Safety Code § 11370.2). Another possible danger is drug offender registration (Health and Safety Code § 11590), which is required for sales offenses as well as any charge of being under the influence.
Drug crimes can become more serious if there is an allegation of a sale to or other involvement of a minor. There is a presumption against probation for furnishing phenylcyclohexyl piperidine (PCP or “angel dust”). There is the possibility of an enhancement of three to 25 years based on the amount for transport or sale of cocaine, freebase, or heroin. Any defendant personally armed with a firearm in the commission of a sales, transport, or manufacturing offense can face a weapons enhancement of up to five years.
If drug charges are threatening you or a loved one, an experienced attorney is needed to minimize any possible penal consequences and see to it that the right help is offered for any underlying addiction issues. Call me today for a free confidential consultation.