Consult a qualified drug defense lawyer for drug charges to lessen the impact of your arrest
If you have been charged with a drug crime, it is essential that you talk to a criminal drug defense attorney right away to mitigate these potential consequences and protect your legal interests. The California drug crime lawyers at My Rights Law have extensive experience in defending clients with drug-related charges and are ready to fight for you. To learn more about how our drug attorney can help you in your case, reach out to us by calling (888) 702-8882 or through our secure web form.
California Drug Lawyers
Being charged with a drug crime in California can be devastating. If you are not adequately represented by legal counsel, the consequences can be severe. No matter how insignificant the charge may be, you must take the potential effects seriously. Depending on the nature of your charge, your life could be changed irreparably by the case’s outcome. The consequences for a drug crime conviction, from the least serious to most serious, can result in extended jail time, hefty fines, a criminal record, and more.
To help drug offenders with their drug case, the drug defense attorneys at My Rights Law have created a detailed overview of drug crimes in California along with important terms, tips, and possible defenses related to your potential case.
Ask a Drug Crime Defense Lawyer: What Is A Drug Crime In California?
A drug crime refers to any offense which violates law related to a controlled substance. Controlled substances are drugs and chemicals determined to have harmful health effects when misused or used without a valid medical reason that is recognized by the Drug Enforcement Agency and state enforcement agencies. The U.S. government, along with California, regulates and prohibits the possession, distribution, and manufacture of controlled substances under the Controlled Substances Act and The Uniform Controlled Substances Act at the state level. The Uniform Controlled Substances Act is an extensive regulatory act involving drug schedules, kinds of drug crimes, the penalties associated with those schedules and crimes, treatment alternatives, and more.
Controlled Substances Act
As established above, the Uniform Controlled Substances Act is a modified version of the previous Act drafted by the Department of Justice in 1969. The Act establishes a scheduling system, which classifies various drugs for use and enforcement. Since then, every state has adopted the Act; however, some states like California have modified the Act through legislation.
Controlled Substances Schedules In California
As discussed above, the Uniform controlled substances act created “schedules” for drugs to help the state enforce legal use, regulation, and management of these substances. Regarding the Act, schedules are groups of drugs determined based on several factors such as their medical use, possibility of addiction, and potential effects on health. Substances in each schedule vary. Depending on the schedule category for the substance and the charged violation, you can face varying degrees of penalties. Schedule V carries the lowest penalties, and schedule I has the most severe.
Schedule V (Including Prescription Drugs)
Schedule V drugs carried the lowest penalty out of the five schedules. Most of the substances contained in this schedule are legal with prescriptions and have a low risk of addiction when used. For example, schedule V contains substances found in items such as cough suppressants and other prescription drugs. Although these drugs are legal at schedule V, the schedule limits the amount you can possess under law. Some schedule V drugs include:
The drugs in schedule IV are similar to those in schedule V. Schedule IV substances are mostly medicinal and regularly used by many people. However, the penalties for possessing more than the legally allowed amount are slightly higher for schedule IV than V because they are more habit-forming and can have long-term health consequences if abused. Common schedule IV drugs include:
The main distinction between the two previous schedules and schedule III is that the drugs categorized in this schedule are still primarily medicinal, but use without a medical purpose or prescription can result in abuse and addiction. Some schedule III drugs include:
The substances in schedule II generally have few medicinal purposes outside of their prescribed uses. If used without a prescription, these substances can carry a high risk of addiction and abuse. Some schedule II substances include:
Components of Amphetamine or Methamphetamine
While many of these drugs have significant adverse effects when used with a prescription, several are regularly prescribed to treat diagnosed medical issues. The list includes stimulants and depressants to treat mental health conditions, like Adderall for attention disorders. Others include hospital-grade pain killers like hydrocodone for enhanced pain relief following surgery. Lawful possession of these drugs involves prescription or administration by a licensed medical professional. However, using larger than prescribed amounts may result in potential criminal penalties even with a prescription.
Schedule I represents the most dangerous or addictive substances according to the federal law and California versions of the Uniform Controlled Substances Act. With one notable exception, marijuana, the drugs on this list generally are considered to have no medical value, with use believed to lead to abuse, addiction, and severe dependency. Schedule I substances carry the highest penalties for possession, manufacturing, transportation, and other schedule I violations. Some schedule I substances include:
These drugs carry the highest penalty when they are the subject of a drug charge. Some substances on the list, like marijuana, remain on the schedule one list at both the federal and California State level despite its legal recreational status in California. This guide will discuss marijuana’s status on the schedule I list.
Controlled Substances: Conclusion
The drugs listed in the schedules above are only a small portion of the drugs included in the Uniform Controlled Substances Act. The Act lists numerous controlled substances and their schedules for control and regulation. You can find the complete list of substances and schedules in the Uniform Controlled Substances Act on the California legislature’s website. To learn more about the standards and schedules involved in the Uniform Controlled Substances Act, visit the Uniform Controlled Substances Act Standards code sections group linked here.
Common California Drug And Controlled Substances Charges
The Uniform Controlled Substances Act provides several penalties involved with various drug charges. Some of the most common charges include possession charges (unlawful possession, possession for sale), transportation, manufacturing, and under the influence of drug. Each of these charges consists of elements that the prosecution must prove and penalties that go along with them if successfully established. This portion will cover common charges, elements that the prosecution must prove to obtain a conviction, and the penalties associated if convicted.
Unlawful Drug Possession – Health And Safety Code 11350(a) HS
To be convicted of drug possession charges, you must:
Possess illegal drugs schedule I-V, or
Possess legal drugs without a valid prescription; or
Have more than the legal amount of prescription drugs; and
Must exercise control of the drug(s) or substance(s) and understand the substance is illegal.
Possession With Intent To Sell – Health And Safety Code 11351 HS
Possession with intent to sell is prosecuted according to the substance’s placement on the schedules list. This means that charges of this kind are based on the danger associated with the drug by category. To be charged with intent to sell:
You must have had enough of the controlled substance to make a sale;
Law enforcement must objectively and justifiably suspect based on specific facts or circumstances that you intended to sell that substance; and
You intended to sell the controlled substance for money or in exchange for something else of value.
Drug Transportation – Health And Safety Code 11352 HS
A drug transportation charge suggests that any person who transports, brings into the state, sells, provides, administers, gives away, or offers to do any of the above regarding a controlled substance has committed the offense of transportation of a controlled substance. Any kind of transportation can be used to support the charge. You do not need to have the drugs or substances in your possession to be charged with transportation; you only need to have had control over the movement of the drugs. To be convicted of transportation, you must:
Have transported an illegal drug or substance; and
Have had enough of the substance to be used; and
Have had control over the substance, and you were aware of the presence of the substance and its illegal nature.
Drug Manufacturing – Health And Safety Code 11379.6 HS
California law states that anyone who knowingly and directly or indirectly produces a controlled substance has committed the offense. To be convicted of narcotic drug manufacturing:
You must have possession and control of drugs or illegal substances; and
You intended to manufacture those drugs or substances.
Under The Influence – Health And Safety Code 11550 HS
If law enforcement detects your drug usage, you can be charged with under the influence. Charges for the offense do not depend on your actual impairment. Even if you do not appear impaired, you may still qualify. To be charged, you must use a controlled substance and be under the influence of that substance—up to five days after—as long as you are not in withdrawal. To be convicted of under the influence:
You must have purposely used a drug or controlled substance; and
You were under the influence of that drug or controlled substance.
California Drug Crime Sentencing Guidelines
California’s sentencing guidelines are unique compared to those in other states. California has changed how it charges some drug crimes and has modified the severity of conviction penalties. Instead of firm sentencing guidelines, California employs a case-by-case analysis to determine whether the violation amounts to an infraction, misdemeanor, or felony.
Misdemeanors And Infractions
In most drug cases, a crime will result in a misdemeanor charge (e.g., drug paraphernalia) or an “infraction” if the violation is minor. Infractions often result in little-to-no time in jail and minimal fines. The state considers charges of possession of controlled substances as “simple drug possession,” which the law classifies as a misdemeanor. Misdemeanor penalties can include up to one year in jail, community service, and a potential fine of up to $1,000.
In California, most drug crimes are charged as misdemeanor offenses unless other factors convince the court to charge them as a felony. In general, a felony conviction carries a maximum sentence of more than one year in jail or prison. Depending on the nature and severity of the violation, a prison sentence could range from just over a year to life in prison.
Type And Amount Of Drug
The type of drug involved and the quantity possessed can elevate a misdemeanor to a felony. For example, if you are pulled over on suspicion of drunk driving, and the police find that you possess a substance like heroin, the danger associated with that drug can influence the charge you receive, sometimes resulting in an automatic felony charge. Additionally, the amount of a given drug can result in a felony. For example, if you have a large amount of a substance on the schedules list, you could face felony drug charges.
Possession For Sale – Health And Safety Code 11351 HS
Regarding possession, how you intend to use the substance can affect whether you are charged with a felony. If you possess the drugs for personal use, it is more likely that you will be charged with a misdemeanor. However, if you have the substance and intend to sell or distribute it, you may be more likely to be charged with a felony. California distinguishes these two types of possession violations by the harm that can occur. If a person possesses and intends personal use, the damage is limited. However, if you intend to sell or distribute, the harmful effect is multiplied because more people use the substance.
Aggravating factors are additional facts that elevate a misdemeanor to a felony or result in harsher felony penalties if present. For example, if you commit a drug distribution violation within 1,000 feet of a school or another location where children or young adults frequent—such as schools, colleges, or youth centers—your charge will likely be elevated to a felony, and penalties could double. Other aggravating factors include possession of a loaded firearm, gang-related activity, presence of a minor, or transportation of a controlled substance to a county not bordering the substance’s originating county.
Secondary offenses are not necessarily drug-related offenses but carry felony penalties. Secondary offenses include assault, rape, attempted murder, voluntary manslaughter, robbery, burglary, bank robbery, murder, arson, carjacking, kidnapping, or first-degree burglary. Suppose you commit one or more of these secondary offenses before the drug charge. In that case, you could be charged with a felony, resulting in penalties increasing from $1,000 to $2,000 (or community service depending on facts of your case) and time served to two years in county jail.
“Three Strikes” Sentencing Law
California’s “Three Strikes” Law required that a person convicted of three “violent or serious” felonies serve 25 years to life in prison. Proposition 36, approved in November 2012, amended the law in two ways:
The third and final felony must have been “serious or violent” to be considered a “strike” against the violator.
Those serving a third strike sentence can petition the court to reduce the severity of their “strike” so it would not count toward their total strikes.
While Prop 36 amended the law, if your controlled substance violation is considered serious or violent, a conviction on those charges may count toward overall strikes.
Penalties For Methamphetamine In California – Health And Safety Code 11377(a) HS
Methamphetamine poses a significant threat in California and the country at large. The California legislature addressed this threat by enacting additional penalties for violations involving methamphetamines. Simple possession of meth is classified as a misdemeanor, whereas distribution, manufacture, and drug sales are felonies. Penalties range from a year in jail or a diversion program for an under the influence charge, to seven years prison time and fines of $50,000 for manufacturing.
Drug Charge Criminal Case Process
After being arrested or detained, the court will process you through the criminal system. Depending on the nature of the offense and the court’s caseload, the entire length of the process will vary.
At the initial appearance, the judge will inform you of the drug crime charges against you and ask how you plead to the charges, guilty or not guilty. Bail, or the amount of money you must pay for release from court custody pending trial, is also set at this phase.
Discovery is the process of gathering information to build your case. The process involves requesting information by formal requests to prosecutors to provide the evidence they intend to use against you in court. There are often disputes about what each party has to disclose. To address these legal issues, the court oversees the discovery process.
Pretrial Motion Hearings
Pretrial hearings address issues occurring during the discovery phase and must be addressed before the trial begins. Up to a week before the trial, either party can bring motions before the court to address issues like constitutional violations, illegal or improper evidence, or other relief they want to have addressed by the court.Final Pretrial Hearing
The final pretrial hearing is the last chance for either party to address preliminary issues before the trial begins.
Voir Dire (Jury Selection)
Voir dire, or jury selection, is the process of selecting the jurors who will ultimately decide the case. Prosecutors and your attorney will ask potential jurors questions to determine if they want to include that juror in the final jury. These questions involve jurors’ preferences, life experiences, past experiences in court, and other inquiries related to the subject matter of the trial to determine how they would respond as a juror. Each side has a certain number of members they can “strike” or request dismissed from jury duty.
Opening statements give the court and jury an overview of each side’s case, including the applicable drug laws, witnesses involved in the case, burdens of proof, and more. The prosecution presents its opening statement first, followed by the defense.
The case-in-chief is a party’s main case presented to the jury. Cases-in-chief involve questioning witnesses and bringing objections to improper evidence. Each party will “cross-examine” the others’ witnesses to gain information helpful to their case or to weaken the opposing party’s case.
After each party has finished presenting their case-in-chief, each party’s attorneys give a closing statement. Closing statements are a final opportunity for each side’s attorneys to convince the jury as to guilt or innocence by providing the jury with a summary of the trial from their point of view.
Jury instructions are statements of the applicable law to aid the jury in deciding the case. The prosecution and defense counsel must all agree on the statement of the law’s language read to the jury. If one party objects, the judge handles the objection.
After the judge provides the jury with the instruction, the jury leaves the courtroom to deliberate. These deliberations may last hours or days, but the jury must reach a unanimous decision for you to be convicted. If the jury cannot unanimously agree, they are considered a “hung jury,” and your charges will be dismissed.
If the jury finds the defendant “guilty,” the defendant will be held in jail until the sentencing
hearing. The judge reviews the facts at the sentencing hearing to determine what sentence to impose. At this phase, the judge may consider factors that reduce the sentence or aggravating factors that may heighten the penalties.
Following the sentencing, your attorney can appeal all preserved aspects of the case to the California Court of Appeals. If the issues are not resolved in the Appeals Court, you can appeal your case to the California Supreme Court. Following attention from the California Supreme Court, you may appeal to the United States Supreme Court. To do so, you must file a writ of certiorari, which is a request to the Supreme Court to have them hear your case, which the Court may accept or reject.
Defenses To Drug Charges A Good Drug Defense Attorney Will Argue
Defenses are arguments that your attorney may make to have evidence excluded, charges reduced, and charges dismissed entirely in your case. The defenses your attorney uses will vary depending on the available facts, circumstances, and the drug-related crime (e.g., drug possession, drug trafficking) with which you are charged.
To be convicted of possession, the prosecutor must prove that you knew, or had reason to know, that you had the controlled substance in your possession. If you can establish that you did not know the substances were in your possession at the time of arrest, the prosecution cannot meet their burden of proof, resulting in the dismissal of your charges.
Lack Of Affirmative Link
The prosecution must prove that the substance at issue is actually yours. For example, you may live in a shared household. One person may have brought the substance into the house, but you have no association or link with the drugs. In this situation, your attorney will argue that you have no connection to the substances and cannot be charged with the crime. If this argument convinces the jury, the court will dismiss the charges as the prosecution cannot prove their case.
Violation Of Fourth Amendment Right Against Unlawful Search And Seizure
Any evidence obtained through a search that violates the Fourth Amendment to the U.S. Constitution (also known as an illegal search) may be excluded and cannot be used against you in court. Searches can violate the Fourth Amendment in several ways.
No Probable Cause
Law enforcement may only search you, your home, and other protected places if they first have a reasonable basis to suspect that you have committed a crime.
Your consent to a search is required unless law enforcement has probable cause or a warrant—a lawful order from the court—to search your home or another protected place. Deception by law enforcement in obtaining your consent may also be grounds to exclude the evidence obtained during the search.
Scope Of The Search
After arrest, law enforcement may search you and the immediate area accessible to you. If you are arrested in your home without a valid search warrant, law enforcement may only perform a protective sweep of your home to ensure that there are no hidden threats. This protective sweep can only include areas that may conceal these dangers, like a closet that could hide another person. However, the police are not allowed to perform a full search of the home to gather evidence.
If law enforcement finds evidence during a valid protective sweep, that evidence may be admissible in court. However, for example, the police may not search dresser drawers or other small containers for evidence, as that exceeds the purpose of the protective sweep because those places are unlikely to contain active threats. If law enforcement obtains evidence this way, the court may exclude the evidence because it was collected outside the scope of the valid search.
Chain Of Custody
Chain of custody involves collecting and analyzing evidence after collection. If law enforcement does not keep an accurate and precise record of how the evidence has been handled, your attorney can argue that the evidence is invalid and cannot be used against you in court. A chain of custody argument suggests that evidence could have been changed, tampered with, or corrupted at any point from collection to filing.
Violation Of Miranda Rights
What is usually called your “Miranda rights,” a Miranda warning involves a statement provided by law enforcement to inform you of your right against self-incrimination during and after arrest. These rights come from the U.S. Constitution, and they include reminders that you have a right to remain silent, that anything you say can be used against you, and that you have a right to have an attorney present during interrogation. If these rights are not read to you or if law enforcement does not abide by them, your attorney can argue that your rights have been violated and that the prosecutor cannot use the evidence obtained from that violation against you in court.
Substance Was Not A Controlled Substance
It is common for mistakes to occur during an arrest. In many cases, some non-controlled substances can look like controlled substances at first glance. However, if the substance you had when you were arrested was not a controlled substance at all, you have not committed a crime. In this example, if the substance that originates the charge is not a controlled substance, the prosecution cannot prove a crime has been committed, and the charges against you will be dismissed.
You Lawfully Possessed A Controlled Substance
Many of the controlled substances on the schedules list are prescription drugs. Although these substances are considered dangerous and addictive, medical professionals prescribe many of these substances to treat various physical and mental ailments. If you can show that a licensed medical professional prescribed the controlled substance, you have not committed a crime. However, this defense will only apply to substances that can be lawfully prescribed, like codeine or Adderall. Doctors cannot legally prescribe others, like heroin or crack cocaine, so the defense will not apply.
In California, entrapment is a situation where law enforcement actions induce a normally law-abiding person to commit a crime that they otherwise would not have committed. California law focuses primarily on law officer conduct. Police conduct that amounts to pressure, harassment or threats, or fraud constitutes entrapment. It does not matter whether you are predisposed to this kind of activity or the most upstanding citizen; all that matters is that the police engaged in the actions described above to make you act against your nature to commit a crime. However, things like presenting an opportunity to participate in the drug transaction, initiating the deal, undercover operations, or assurances that you are not “being set up” are not considered entrapment. Depending on what law enforcement did to induce you to commit the drug offense, your attorney may argue that the evidence should be excluded from court. And depending on law enforcement’s actions, your attorney may argue that the court should dismiss your charges.
Charging Alternatives And Reforms
Diversion programs are alternatives to formal criminal charges offered by law enforcement agencies to address the underlying issues often involved in controlled substances crimes. The programs allow those charged with drug offenses the opportunity to have their charges dismissed and avoid the penalties associated with a conviction. Diversion programs involve substance abuse classes, drug counseling, and regular testing. If you complete the program, the prosecutor will dismiss the charges, and you avoid the penalties of the sentence. However, if you do not finish the program, you may receive additional charges, and the criminal process on your initial charges may resume. California has two drug diversion programs: Penal Code 1000 and Prop 36. Penal Code 1000 programs are for first-time offenders of unlawful possession; Prop 36 is for repeat offenders and those who did not complete the prior Penal Code 1000 diversion program.
Prop 36 is an amendment to California’s preexisting “Three Strikes” sentencing law. Before it was amended, the “Three-Strikes” rule required that a person convicted of three “violent or serious” felonies serve 25 years to life in prison. However, citizens voted to pass Prop 36 in 2012. Prop 36 amended the “Three Strikes” rule so harsh prison penalties would only be triggered if the third conviction was a serious or violent felony. In addition, prop 36 also allowed those currently serving a third-strike sentence to petition the court for a reduction of the term to a second-strike sentence if they were sentenced before the proposition was passed and they would have otherwise qualified. Prop 36 presented a meaningful change to California’s sentencing law by reducing the instances of offenders serving the harsh penalties associated with the law.
Talk with a criminal defense lawyer to see whether you qualify for a drug diversion program.
Marijuana is a schedule I drug, according to the Federal Controlled Substances Act. Until 2016, recreational use of marijuana was illegal, and possession, sale, and distribution of the substance still resulted in drug charges. However, in November of 2016, Californians legalized marijuana possession by passing Prop 64. The rationale behind the proposition followed developing science and changed opinions about marijuana. However, while marijuana is legal for recreational use in California, it remains on the controlled substances list schedule. While marijuana is still on the list, its status as a schedule I drug is less about dangerous effects and more about the level of regulation the state retains over it. Passing the proposition decreased the number of drug crimes in California substantially, reducing the negative effect on citizens and the criminal justice system.
Frequently Asked Questions About Lawyers In California That Handle Drug Charges
Do I need a lawyer for a misdemeanor drug charge?
If you have been charged with a misdemeanor drug crime, you may be wondering what the legal implications are and what kind of penalties you could be facing if convicted. Unfortunately, even some misdemeanors drug possession crimes come with the possibility of time in jail and a criminal record – which is why it’s so important to hire an experienced criminal defense attorney who can help ensure the best possible outcome for your case.
How much do lawyers charge for drug cases?
Lawyer fees in drug cases can range from relatively low to extremely high, depending on the specifics of the situation. An average initial retainer for a drug defense attorney could be a few thousand dollars to several thousand dollars. However, costs may rise if complex legal representation is needed to defend against the charges.
It’s in your best interest to get a quote for legal representation costs by speaking with an attorney about your individual situation. Some attorneys may be willing to work out a payment plan with you if you are unable to pay the full amount at once.
Can your lawyer go with you to drug court?
Yes, your lawyer can accompany you to drug court. Drug court is a voluntary court program that provides treatment to individuals with a history of substance abuse. It includes regular appearances before a Drug Court Judge, and your defense attorney can be present during these proceedings. Your attorney will work with you and the judge to ensure that your rights are protected throughout the process. Additionally, they will provide legal advice and advocacy on your behalf. While in drug court, your lawyer can help you understand the terms of the program and how best to meet them. With this assistance, you can successfully complete your treatment plan and have charges against you dismissed.
Should I hire a lawyer for a failed drug test?
If you have failed a drug test and are facing adverse employment action, it is important to consider hiring a lawyer. Employment laws vary depending on the state, so it is important to seek legal counsel in order to understand your rights and obligations. A lawyer can help assess the circumstances and see if there have been any violations of your rights or the employer’s conduct.
A lawyer can also assist in filing a lawsuit if you feel that you have been wrongfully terminated due to a false positive drug test. They can provide advice on how to proceed with a case and potentially negotiate for a settlement outside of court. Additionally, if you are on probation and fail a drug test, it is important to hire an experienced VOP lawyer who can help mitigate the consequences of failing such tests.
It is also important to note that failing a workplace drug test does not automatically mean legal charges will be incurred. In most cases, employers will take disciplinary action against employees who fail such tests without involving law enforcement. However, if you feel that you were wrongfully terminated or had incorrect results from the drug testing, then it may be worth seeking legal counsel to discuss your options further.
Hiring Drug Defense Attorneys For Drug Charges In California
The drug defense attorney you choose can make the difference between having criminal charges dismissed or being severely punished. My Rights Law’s strong team of criminal lawyers have the experience to help clients fight charges in all criminal practice areas. Our law resources and expertise enable us to pursue difficult cases yielding favorable results. We protect our clients through our expertise in the law and extensive experience in handling all misdemeanor and felony criminal cases including, but not limited to, alcohol-related crimes, drug crimes, violent crimes, domestic violence, sex crimes, crimes against children, theft crimes, juvenile delinquency crimes, gun crimes, property crimes, cybercrimes, driving offenses, public safety violations, federal crimes, financial crimes, crimes against the government, crimes against justice, and inchoate crimes. We also specialize in restraining orders, pretrial diversion programs, and expungements. Our criminal defense lawyers know that communication, strategy, preparation, and planning are the hallmarks of a strong defense in every one of our criminal cases.
Drug charges in California are serious matters. It is vital that you act quickly to protect your rights and interests following your arrest. The best step you can take before going to court is to hire an experienced criminal defense attorney. A criminal defense attorney who values the attorney client relationship and who is skilled at navigating the criminal justice system can help you avoid conviction and associated penalties. Our law firm is ready to represent you throughout the entire process. For a free consultation with attorneys for drug charges from My Rights Law, reach out to us by calling (888) 702-8882 or using our online form.