When does Drug Possession become a Felony?

In California, drug crime offenses are charged based on the California Health and Safety Code. These code sections detail the schedules of narcotics in California, the drug schedule based on the United States Controlled Substances Act. Following federal law, California law has listed drugs as they fall into the categories of Schedule I through Schedule V.

According to the California Health and Safety Code § 11350-11356.5, it is illegal to possess, possess for sale, manufacture/cultivate, and transport/traffic illegal narcotics or prescription drugs. Listed below are some of the penalties for these crimes according to the California drug codes.

Drug Possession Defined

Drug possession, generally, is defined as having control over the thing, i.e., the controlled substance. This can be either personally or through another person. A party does not have to actually hold or touch something to possess it.

For example, if you possess a baggie of cocaine in your purse or backpack, you are in possession. The same is true if a baggie of meth is found in your closet in your home or your locker in San Diego, but you are in Los Angeles for the weekend when it is found.

When you are arrested for a drug charge, you can either be charged with a misdemeanor or a felony drug charge. A misdemeanor charge is the less severe of the two. The degree of crime that you are charged with depends on numerous factors. The differences between a misdemeanor and a felony drug charge are explained below.

Drug Possession – Misdemeanor & Felony Charges

Misdemeanor charges are typically minor drug offenses and sometimes possession if the amounts are small, such as only a few ounces.

The penalties for misdemeanor charges typically involve; county jail time up to 1 year, fines, probation time, diversion programs, and/or drug treatment.

Felony charges are typically drug offenses that include aggravating circumstances. Some examples of felony drug charges are: larger quantities of the controlled substance is possessed; another crime is involved along with drug possession; possession with the intent to distribute; manufacturing a controlled substance, or trafficking a controlled substance.

The penalties for felony charges typically involve; state prison time exceeding one year, fines, probation time, and/or drug treatment.

Possession of Marijuana

Since marijuana was legalized in California in 2018, the California Health and Safety Code makes a distinction between possession of marijuana and possession of more restricted dangerous drugs.

You can have possession of concentrated cannabis up to eight grams. They are free to use it at home or in places that have been licensed to allow for legal marijuana use. Thanks to recreational marijuana decriminalized, they are also free to purchase, keep, and consume up to about twenty-eight grams of marijuana on hand in certain places.

However, even though marijuana consumption is legal, you cannot use marijuana while driving or being driving while under the influence of marijuana.

Additionally, you can’t use it while around minors, and if you are over eighteen years old and selling to a minor, you can be convicted of a felony drug crime.

Simple Possession vs. Intent to Sell

California drug possession laws encompass two categories. The first is simple possession. The second is possession with intent to sell

As described above, simple possession is the possession of a controlled substance. These penalties of which depend on the drug which is possessed.

Possession with the intent to sell is a felony charge. Prosecutors tend to charge this offense when there is possession of a controlled substance on a person, and there is other “indicia of sale” present. This is another way of saying there are other factors involved. Some such factors that law enforcement uses to determine whether there was an intent to sell (versus just simple possession) include:

  • Large quantities of the narcotic or controlled substance
  • Packaging of the drug in separate baggies or bindles
  • Scales & baggies for packaging
  • Lots of cash, especially in small denominations
  • Lots of people coming to your place and staying only a few minutes

Penalties for Drug Possession

Generally, penalties for drug possession charges are dependent on the “schedule,” or classification of the drug that is being possessed.

For example, Schedule I (heroin, opiates, etc.) drug offenses carry the most severe penalties because this schedule includes drugs that are the most serious narcotics grouping. They have been determined to have the highest potential for abuse and typically do not serve a medicinal purpose.

Penal Code Section 11352.5 explains the sentencing guideline for possession of heroin, which is divided by the amount of heroin that you are convicted of possessing.

Penalties for Possession with Intent to Sell

Possession with the intent to sell is a much more serious crime than simple possession, and the penalties show as such. If you are convicted of possession with the intent to sell, you 2 -4 years in prison, probation, and/or a maximum $20,000 fine. However, unlike simple possession, a conviction for possession with the intent to sell makes you ineligible for drug diversion.

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