Drug Possession

Attorney Richard M. Oberto has a long track record of delivering compassionate, aggressive legal to clients who are accused of drug possession. He has successfully litigated search and seizure motions, negotiated reduced charges, and secured numerous dismissals for clients. In cases where clients faced sentencing, he has provided expert guidance so that clients receive referrals for diversion programs and treatment rather than jail or prison sentences.

Health and Safety Code sections 11350 and 11377

Possession of controlled substances is typically prosecuted under Health and Safety Code sections 11350 and 11377. The crimes are treated as misdemeanors, unless an accused person has certain prior convictions. Sections 11350 and 11377 can be charged as felonies when a person has a prior conviction for a serious or violent felony under California's Three Strikes Law or a prior conviction for an offense that requires registration as a sex offender under Penal Code section 290(c). Even when treated as misdemeanors, crimes of drug possession carry serious consequences. A person faces fines, jail time up to one year, court-ordered treatment, and other court orders that curtail legal rights and create obligations.

Health and Safety Code section 11350 is typically used to prosecute possession of drugs such as cocaine, crack cocaine, and heroin. It is also used to prosecute possession of opioid medications where a person does not have a valid prescription. Examples of some brand-name opioid medications include OxyContin, Percocet, and Vicodin.

Section 11377 is typically used to prosecute possession of the drugs such as methamphetamine, amphetamines, and phencyclidine (PCP). It is also used to prosecute possession of benzodiazepine medications where a person does not have a valid prescription. Examples of some brand-name medications that contain benzodiazepines include Xanax and Lorazepam.

The Prosecution’s Burden of Proof

The crime of simple possession of a controlled substance has five main elements. The prosecution has the burden of proving each element beyond a reasonable doubt.

Unlawful Possession

The first element of simple possession is unlawful possession of a controlled substance. Possession requires proof of control. Proximity to a controlled substance does not establish necessarily that a person had control over it. A person might have been very near a controlled substance, but not have had any right or any ability to control it.

Possession of a controlled substance is not unlawful if a person had a valid prescription for the substance. The issue frequently arises in cases involving medications that are available by prescription in pharmacies. When medical prescription is an issue, the prosecution has the burden of proving beyond a reasonable doubt that the accused person did not have a valid prescription.

Knowledge that the Controlled Substance was Present

The second element of simple possession is knowledge that the controlled substance was present. A person may have been very near a controlled substance, but not known of its presence. The issue frequently arises in cases where an accused person was a visitor, travel companion, or was accompanying others. It also arises on account of accident, inadvertence, or mishap when a person borrows an item or picks up the wrong bag, clothes, or personal effects.

Knowledge of the Nature and Character of the Controlled Substance

The third element of simple possession is knowledge of the nature and character of the controlled substance. The accused person must have known that he possessed some controlled substance. He does not need to have known which specific controlled substance he possessed. Nonetheless, there may be grounds for a defense when the accused did not know the substance he possessed was any controlled substance.

Proof of Controlled Substance

The fourth element of simple possession requires that the substance in question was a controlled substance. The California Health and Safety Code defines controlled substances in sections 11054 through 11058. Possession of substances not listed in those code sections nonetheless may be prosecuted if they qualify as analogues.

Usable Amount

The fifth element of simple possession is that the controlled substance was a usable amount. The amount must be enough for use as a controlled substance, but does not have to be so much as would affect the user. Traces and debris are never enough to constitute a usable amount.

Drug Diversion and Probation

A person facing charges of drug possession ordinarily will be presented with options for drug diversion and probationary drug treatment. Examples include drug diversion under Penal Code section 1000 and Prop. 36 Probation under Penal Code section 1210.1. A person should consider his potential defenses very carefully before making any decisions about court-ordered programs.

Aggressive Representation

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

People also may contact Mr. Oberto to request an initial consultation using the contact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.

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