Possession of a Controlled Substance


In California, possession of a controlled substance, such as illegal drugs like heroin or cocaine or prescription drugs not obtained with a proper prescription, is against the law. If you are caught in possession of any usable amount, you face legal consequences.

Since the passage of Proposition 47, possession of a controlled substance has become a misdemeanor crime in most cases. While the punishment for Possession of a Controlled Substance may now sound like no big deal, this misdemeanor can have serious long-term consequences. Even under the conditions of Proposition 47, you could be sentenced to up to a year in prison, depending on the amount and type of controlled substance. Plus, not everyone can receive a lesser punishment under the conditions provided for by Proposition 47, meaning some can still face felony charges.

For this reason, it can be helpful to consult an experienced San Diego drug attorney who will ensure that your rights are protected and your consequences are minimized. In some cases, we can get the charges you face totally dismissed. In many cases, we can get a reduction of the charges or penalties you will face.

Understanding Possession of a Controlled Substance

A controlled substance is a regulated drug that has been placed on a schedule of controlled substances by the State of California. Some of these are always illegal, such as cocaine, heroin, or meth. Others are prescription drugs, such as painkillers like morphine and oxycodone. Most of these are defined as illegal under California Health & Safety Code §11350.

This code defines six “schedules” of controlled substances in California. Each is defined by broad categories of types and amounts of drugs that are similarly punished. These are:

  • Schedule I drugs (including opiates, cocaine, mescaline)
  • Schedule II drugs (including raw opium, morphine, and other narcotics),
  • Schedule III drugs (including pentobarbital and anabolic steroids),
  • Schedule IV drugs (including many prescription drugs such as diazepam and zolpidem), and
  • Schedule V drugs (lesser-controlled prescription drugs, such as low doses of codeine).

Some drugs like meth are made illegal by other parts of the criminal code, but they are generally treated the same as controlled substances within these schedules.

In order for the prosecution to prove that you are guilty of possession of a controlled substance, they must demonstrate beyond a reasonable doubt that:

  • The substance in question is a controlled substance.
  • You unlawfully possessed the controlled substance (that is, it is always illegal or you did not have a proper prescription from a doctor).
  • You knew of the presence of the controlled substance.
  • You knew the substance was a controlled substance.
  • You possessed a usable amount of the drug, not just residue.

If any of these cannot be demonstrated, your case must be dismissed.

While most people assume that you must be holding the drugs to be charged with Possession of a Controlled Substance, law enforcement can charge you with possession in three ways.

  • Actual Possession: This is what most people associate with possession. The drug is physically on your person, such as in your pocket.
  • Constructive Possession: This is less clearly defined. Generally, you can be charged with constructive possession if the drug is somewhere you could easily access it, such as in your car, at your residence, or in another place (such as in a gym locker or stashed within reach under a chair). The prosecution must prove in these cases that the drug was “within your control,” which essentially means that you could retrieve it easily to have actual physical possession.
  • Joint Possession: Joint possession is an extension of both actual and constructive possession, where two people have ownership of a drug. Usually, joint possession occurs when a drug is found in a shared space and both parties have constructive possession. If you and your friend pool money to purchase a controlled substance, you could be charged with joint possession.

Consequences of a Possession of a Controlled Substances Conviction

Under Proposition 47, possession of any drug on a Schedule is a misdemeanor crime, punishable by up to a year in prison. Not everyone qualifies for these misdemeanor charges, though. Proposition 47 only applies to people who are not registered sex offenders and do not have past convictions for other serious violent crimes, such as murder. Defendants who do not qualify can be charged with either a misdemeanor or a felony, depending on the drug and the amount of possession. Some of these charges could lead to several years in jail.

Jail time is not the only consequence of a drug conviction, though. A criminal record related to Possession of a Controlled Substance could lead to difficulty with:

  • Job Searches: When you have a conviction, finding a job is a challenge. You may be required to undergo a background check, which will turn up a conviction. You also can’t get a security clearance to do government work.
  • Renting an Apartment: If a background check reveals a conviction, a landlord may not want to rent to you.
  • College Financial Aid: A drug conviction may prevent you from receiving financial aid to pay for college or university. If you are currently a student, this may even prevent you from graduating.
  • Custody Cases: A judge may look unfavorably on a drug conviction when granting custody of your children.
  • Immigration: If you are here on a visa or a green card, it can be revoked for certain convictions. A felony conviction can lead to deportation.

Unfortunately, there are even many other potential consequences. An experienced San Diego drug defense attorney can honestly tell you what you could be facing and help minimize these charges.

Is a Drug Diversion Program an Option?

The purpose of Proposition 47 was to encourage treatment over prison for drug crimes. For this reason, courts may be receptive to allowing you to enter a diversion program. As a misdemeanor offender, you usually qualify.

When you enter a drug diversion program, you plead guilty to the possession charge and sentencing is delayed while you complete a drug treatment program. Once you successfully complete the program and meet some other requirements, your case is dismissed. This means don’t have to disclose drug charges when applying for a job or apartment.

A San Diego drug defense attorney can fight for your chance to enter a drug diversion program and avoid other criminal consequences.

Fighting a Possession of a Controlled Substances Charge

If you’ve been charged with possession of a controlled substance, there are a number of ways that a drug defense lawyer will be able to help you fight the charges. In some cases, they can even get the charges dismissed. Some common strategies include arguing that:

  • You had a valid prescription (or that they cannot prove that you did not have such a prescription).
  • The substance was not a controlled substance.
  • You were unaware of the presence of the drugs.
  • The controlled substance belonged to another person.
  • The search and seizure that revealed the drugs was illegal.
  • The drugs in question were never under your control.

Every case is unique so a defense that would be effective in one situation may not work for you. When you consult a good San Diego drug defense attorney, she will be able to review the facts and evidence to determine which defenses and options may be best. Consulting a San Diego drug defense attorney lets you better understand what to expect from your case and prepare an effective defense to fight the charges.