What are Drug Charges?
Like most other states, in California, drug charges include every step in the "drug trade," including:
- Manufacturing activity includes planting and cultivating marijuana, possessing items used to manufacture illegal drugs, and manufacturing illegal drugs.
- Transportation of controlled substances for sale is illegal and punishable as a felony. It is also illegal to move a usable amount of a drug for sale any distance.
- Possession of controlled substance is illegal, whether for personal use or "with the intent to sell." Exception: One ounce or less of marijuana is legal by persons over 21 years old under Health & Safety Code Section 11357.
- "Under the Influence" means a person's nervous system, brain, or muscles are appreciably affected by a drug. Using the proper dose of prescription drugs is a defense to under the influence charges.
- Driving while impaired by a controlled substance is illegal, even if you have a valid prescription. You can be too impaired to drive even if you take the prescribed dosage.
Drug Charge Punishments
Punishments for drug charges include up to one year of jail (misdemeanor) and up to 3 years of prison (felony). Some crimes involving controlled substances, such as transportation for sale, have a maximum prison sentence of 5 years.
Additional Drug Charge Punishments
Punishments also include fines, forfeiture of cash seized by law enforcement, suspension or revocation of driver's license, 3-5 year probation, entering and completing a residential treatment program, and a requirement to participate in clean and sober court. Punishments vary depending on the facts of the case.
Clean and Sober
Clean and sober court is often required for a conviction of simple possession or under the influence. Restrictions include:
- No using drugs or alcohol, submit to regular testing;
- Prohibited from owning any weapons;
- Submit to search and seizure of property and residence, and random drug testing;
- No gambling until all probation fees and restitution is paid in full;
- Do not socialize with drug-using friends or anyone on probation or parole.
Drug Charge Defenses
Substance was not a Drug
It is not illegal to possess a substance that looks like drugs. Although it can result in an arrest, to obtain a conviction, the district attorney must test the substance in order to prove that the substance that was seized by law enforcement is an illegal drug.
The 4th Amendment guarantees the right to be free from unreasonable search and seizure. A search is unreasonable if it is not conducted pursuant to a warrant or one of the established exceptions to the warrant requirement.
A warrant issued by a judge is presumed to be reasonable. However, the warrant can still be invalid if law enforcement misled the judge who signed the warrant, the facts in the warrant do not constitute probable cause, the facts in the warrant are false, or it fails to specify which areas and objects are to be seized and searched.
Prescription drugs are controlled substances and therefore illegal in California without a valid prescription from a licensed physician. Possession of a valid prescription is not a defense to charges of selling, transporting, manufacturing, or driving under the influence of an illegal drug.
A person is entrapped if a law enforcement officer engaged in conduct that would cause a normally law-abiding person to commit the crime.
The defendant has the burden of proving an entrapment defense by a preponderance of evidence, or more likely than not.