Possession vs. Possession with Intent to Sell

The possession of any controlled substance—apart from those that have a medical use with a valid perception—is a crime in California. A related but more serious crime is the possession of a controlled substance with the intent to sell it. The difference between the two charges hinges on a prosecutor’s ability to prove that you intended to sell the drug in your possession.

What Sort of Evidence Do Prosecutors Need in Possession With Intent to Sell Cases?

California Health and Safety Code 11351 HS prohibits the possession of controlled substances with the intent to sell. To successfully convict you of this crime, a prosecutor will need to prove the following elements beyond a reasonable doubt:

• You knowingly possessed or purchased a substance that you knew to be illegal
• You had enough of the drug to sell
• You had the intent to sell it

The prosecutor may prove the possession element by showing that the drugs were in your pocket, bag, car, or house—basically any place to which you have a right of access. As for you knowledge of the substance’s illegality, the prosecutor can prove that by showing that you hid the drugs, lied to officers about having them in your possession, or tried to destroy them while being apprehended.

The most difficult element for the prosecutor to prove is your intent to sell. Unless you offer a confession, the prosecutor will have to rely on circumstantial evidence to demonstrate that you intended to sell the substance with which you were caught. Common circumstantial evidence used to prove a suspect’s intent to sell include:

• You had large quantities of the drug
• The drug was packaged in separate baggies or doses
• The police found your scale
• You had lots of cash, especially small notes
• The police observed many people coming to your home or meeting with you for just a few minutes

If the Prosecutor Can’t Prove Intent to Sell, You Could Face Simple Possession Charges

A skilled attorney may able to show a jury that the prosecution’s circumstantial evidence does not show your intent to sell beyond a reasonable doubt. For example, your San Diego criminal defense attorney might argue that:

• Many drug users tend to stock up on large quantities of their favorite substance
• When buying a large quantity of drugs, it sometimes comes divided into separate baggies
• Many drug users own scales to track their usage and to ensure their dealers are honest
• Having a lot of cash doesn’t make one a drug dealer
• In most working class neighborhoods, people visit one another frequently to make small talk—there is nothing wrong or suspicious about neighbors being neighbors

When there’s indisputable evidence of your knowing possession of the controlled substance, your attorney must fight hard to cast doubt on your intent to sell the drug. This could lead to you facing a conviction for the less serious offense of possessing a controlled substance for personal use under California Health and Safety Code section 11350.

If convicted for this lesser offense, you could face significantly lower fines and a shorter jail sentence—much of which might be in the form of probation. Better yet, when a non-violent drug offense is unrelated to sales or distribution, the convict may benefit from a diversion program allowing him or her to attend a substance abuse treatment program instead of jail.

If you’ve been charged with possession or possession with intent to sell, San Diego criminal defense attorney Jessica McElfresh can help. At McElfresh Law, we’ve built our reputation on providing aggressive and creative defense strategies for our clients. Call us today at (858) 756-7107 for a free and confidential consultation of your case.