Possession of a Controlled Substance While Armed – Health and Safety Code 11370.1 HS

Charged With Drug Possession While Armed in California? Call Drug Attorney Now

Under California Health and Safety Code Section 11370.1, it is a serious felony to be in possession of a controlled substance and a loaded firearm at the same time. This crime, often referred to as drug possession while armed, carries substantial legal consequences—including state prison and a fine, a felony conviction, and long-term effects on your civil rights and livelihood.

A conviction under 11370.1 HS may result in up to four years in California state prison, significant fines, and a permanent criminal record. Worse, it can make you ineligible for employment in many professions, bar you from voting or holding certain licenses, and lead to a lifetime firearm ban under both California and federal law.

The text of the statute is as follows:

(a) Regardless of the provisions found in Section 11350, Section 11377, or any other applicable law, any individual who unlawfully possesses any quantity of a substance containing cocaine base, cocaine, heroin, methamphetamine, fentanyl, or phencyclidine (whether in crystalline, liquid, plant-based form, or as a hand-rolled cigarette treated with phencyclidine), while simultaneously being armed with a loaded and functional firearm, commits a felony offense. This felony is punishable by a term of imprisonment in the state prison of two, three, or four years.

(b) The provisions outlined in subdivision (a) do not apply to individuals who lawfully possess fentanyl, including those who possess it under a valid prescription.

(c) For the purposes of subdivision (a), the term “armed with” refers to having a firearm readily available for immediate use, whether for offensive or defensive purposes.

(d) A conviction under this section renders the defendant ineligible for participation in diversion programs or deferred entry of judgment under Chapter 2.5 (beginning with Section 1000) of Title 6, Part 2 of the Penal Code.

However, jail time is not a given. Alternative sentencing, such as formal felony probation, may be available in certain circumstances. Our experience defending clients under Safety Code Section 11370.1 HS makes My Rights Law one of the most respected criminal defense law firms in California. Don’t hesitate if you have been caught possessing both drugs and a loaded gun. Our goal is to defend your future.

Ready to speak with a drug crime lawyer? Contact us now at (888) 702-8845 or contact us online.

See the contents

Factors That Must Be Proven for an HS 11370.1 Conviction

The prosecutor must establish each element beyond a reasonable doubt in order to condemn someone under Health and Safety Code 11370.1(a) HS, as defined by CALCRIM 2303. These jury instructions are rigorous, and any flaw in the case might lead to charges being dropped or reduced.

The elements of the offense include:

You were in actual possession, constructive possession, or joint possession of a controlled substance (e.g., cocaine, heroin, fentanyl, etc.)
You were aware of the presence of the controlled substance
You knew the substance was a specific controlled substance
The amount of controlled substance was usable
You were armed with an operable firearm
The firearm was available for immediate offensive or defensive use

If even one of these elements fails, the 11370.1 charges may be reduced or dismissed. For instance, if the firearm was not loaded and operable, or you were unaware of the presence of either item, the charge may not hold.

Possess

Possess means having control over something. Under Safety Code § 11370.1, possession of a controlled substance can be established in three ways:

Actual possession: You physically had the controlled substance—in a pocket, bag, etc.
Constructive possession: The drug was in a place you controlled (like your home or glovebox)
Joint possession: You and another person both had access to or control over the drug

In criminal defense, proving how the defendant came to possess the firearm or drug is essential.

Usable Amount

A mere trace is not enough. According to California Health and Safety Code, a usable amount means enough controlled substance to be used or consumed. This element is crucial in distinguishing between simple possession and the more serious crime of possession under HS 11370.1.

Armed

Within the meaning of Health and Safety Code Section 11370.1, you don’t have to be holding the firearm to be considered “armed.” It means the loaded firearm was accessible for immediate use, whether in your waistband, car console, or nearby bag. A firearm available for immediate offensive or defensive action meets the requirement.

Loaded Firearm

A loaded firearm is defined as a gun with live ammunition in the chamber or magazine. If the weapon was not loaded, you would not be guilty under HS Code 11370.1—though you could still face other charges, such as carrying a loaded firearm or carrying a concealed firearm under the California Penal Code.

Knowledge

To convict under HS 11370.1, the prosecutor must prove that:

You knew you had a controlled substance
You knew you were armed with an operable firearm
The firearm was available for immediate use

Lacking knowledge of either item undermines the prosecutor’s case. For example, if you didn’t know a friend left a loaded gun in your vehicle, your criminal defense attorney could file a motion to suppress evidence and challenge the charge.

Legal Penalties for Drug Possession While Armed

Violating Safety Code § 11370.1 is a felony to possess a controlled substance while armed with a loaded firearm. The criminal penalties under the law are severe—even in first-time offenses.

Felony Offense

This felony offense carries:

Two to four years in California state prison
Fines of up to $10,000
A felony conviction and criminal record
A permanent firearm ban

This violation of Health and Safety Code 11370.1 is not eligible for deferred entry of judgment, drug diversion under Prop 36, or the Substance Abuse and Crime Prevention Act.

Formal Felony Probation

In some cases, felony probation may be granted instead of prison. Eligible for formal felony probation are typically first-time offenders. Conditions include substance abuse treatment, surrender of firearms, and mandatory compliance with the court’s terms.

HS 11370.1 Related California Crimes

Other related California charges include:

Health and Safety Code 11350 HS – possession of certain controlled substances
Health and Safety Code 11351 HS – possession with intent to sell
Health and Safety Code 11352 HS – transportation of drugs
Penal Code 29800 PC – felon in possession of a firearm
Penal Code 25400 PC – carrying a concealed firearm
Penal Code 25850 PC – carrying a loaded firearm in public
Health and Safety Code 11550 HS – being under the influence

Each carries different penalties and defenses and may be used to enhance your 11370.1 case.

Legal Defense for Drug Possession While Armed Charges

Being accused of possession of a firearm while in possession of a controlled substance does not automatically mean you’re guilty. The gun charge lawyers at My Rights Law carefully assess every detail.

Common defenses include:

Illegal search and seizure
Unaware of the presence of the firearm or controlled substance
The firearm was not loaded and operable
Drugs or weapon belonged to someone else (constructive possession)
Violation of California Health and Safety Code procedures
Entrapment or procedural violations

Our experienced attorneys also explore substance abuse and crime prevention alternatives where appropriate.

Don’t Wait Until It’s Too Late – Contact a My Rights Law Drug Crime Attorney Today!

Being arrested under 11370.1(a) HS is frightening, but you’re not alone. At My Rights Law, we defend individuals facing charges for controlled substance while armed and other California criminal defense cases. We know how HS makes it a crime to be armed with a loaded weapon while in possession of a controlled substance, and we know how to fight those charges.

Our law group offers:

Free consultations
Flexible payment plans
Representation by a seasoned criminal defense attorney
Custom defense strategies for violation of Health and Safety Code Section 11370.1

📞 Don’t risk your future. If you’re facing charges for possessing drugs and a loaded gun, contact a criminal defense lawyer at My Rights Law today.