Possession Of A Controlled Substance
Protecting Those Swept Up in the War on Drugs — San Diego Drug Possession Defense Attorney
State and federal law enforcement agencies take drug offenses extremely seriously. There are many good people who have been swept up in the war on drugs merely because they suffer from an addiction. When you are charged with possession of a controlled substance, you can be subject to serious penalties that include incarceration in county jail or state prison, significant fines, mandatory participation in drug treatment programs, probation and other adverse consequences.
A misdemeanor or felony conviction will remain on your criminal record, so that future employers, academic institutions, State of California licensing boards, professional licensing agencies and landlords discover your conviction. A criminal record can cost you a job, a rental property, a loan and immigration benefits.
Private Criminal Defense Attorney vs. Public Defender
When you are facing an arrest or an interrogation about a drug offense, such as possession, you should assert our constitutional right to have an experienced San Diego criminal defense attorney defend your rights and liberty. Although you might qualify for a public defender, there are advantages to retaining a private attorney. San Diego criminal defense attorney Isaac Blumberg has an intimate understanding of these advantages given that he cut his teeth as a public defender.
Although Mr. Blumberg developed experience handling a multitude of criminal matters and a significant number of jury trials as a former public defender, he also experienced the disadvantages of working in the public defender’s office. Budget limitations that face the district attorney’s office typically mean that public defenders must handle a high volume of criminal cases. This heavy caseload often limits conferences between defendants and their attorneys to rushed meetings in the hallways prior to a court date. Further, public defenders do not necessarily have the same access to funds for expensive forensic testing.
Mr. Blumberg’s experience obtained in criminal trials spanning the full spectrum of criminal offenses from minor misdemeanors to violent felonies is combined with the benefits of access to the best experts, forensic testing and a limited caseload. Whether he is seeking a dismissal, acquittal, diversion or plea reduction, Mr. Blumberg tenaciously attacks the prosecutor’s case and exposes unconstitutional tactics used by law enforcement.
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California Possession of a Controlled Substance (California Health & Safety Code Section 11350)
Under California Health and Safety Section 11350, possession of specific “controlled substances” is unlawful without a valid prescription. The controlled substances that can expose a defendant to criminal liability for possession are those covered under the United States Controlled Substances Act. Narcotics are classified based on a schedule which classifies the drugs according to their degree of danger and the related penalties. The drugs are divided into IV categories with the highest penalties being associated with Class I drugs down to the lowest penalties for Class IV drugs:
- Schedule I Drugs: These drugs are considered the most addictive and hazardous drugs, which offer no legitimate medical benefit. Example of Class I drugs include heroin and LSD.
- Schedule II Drugs: While this category of drugs also is considered highly dangerous and addictive, these drugs might have some legitimate medical uses. Examples of Class II drugs include amphetamines, cocaine and opium.
- Schedule III Drugs: While these drugs pose some risk of addiction, the risk is lower than for a Class II drug. Examples of this category of drugs include ketamine, depressants and anabolic steroids.
- Schedule IV Drugs: Drugs in this category have substantial medical uses with only a limited risk of addiction. Examples of this type of drug include tranquilizers and sedatives.
- Schedule V Drugs: The drugs in this category are extremely low-risk. An example of this form of drug include codeine.
Definition of Possession of a Controlled Substance
If the prosecutor is seeking a conviction for possession of a controlled substance, the following elements must be proven beyond a reasonable doubt:
- The accused exercised control of the drugs or had the right to exercise such control;
- The accused had knowledge of the drug’s presence;
- The accused was aware that the drug was a controlled substance; and
- The amount of the drug was sufficient to be ingested or used as a controlled substance.
Possession is much broader in this context than ordinary conversation because it includes notonly actual possession but also constructive and joint possession.
A defendant actually possesses drugs if he or she has immediate and direct physical control over the narcotics. This generally refers to the drug being on your person, clothing or an item of luggage.
Although the drugs may not be on your person, you can be charged with constructive possession if the drugs are recovered from a location over which you have the right and ability to exercise control. If the drugs are in your storage locker, for example, this would constitute constructive possession if you are the party with the key to access the storage locker.
The police can charge multiple parties share actual or constructive possession. If drugs are found in a married couple’s bathroom cabinet, for example, both spouse’s might be considered to jointly possess the drugs.
Defenses to Possession of a Controlled Substance under California Law
Many criminal cases involving charges of possession of a controlled substance are based on drugs, paraphernalia, cash and other evidence obtained in searches by law enforcement officers. San Diego criminal defense attorney Isaac Blumberg evaluates the facts used to obtain the warrant, the facial sufficiency of the warrant and the scope of the search to identify violations of his client’s 4th Amendment search and seizure rights. Law enforcement agents also might rely on unreliable informants looking to make a deal to improve their own situation. Some of the specific defense strategies that Mr. Blumberg might rely on in a simple possession case include:
- No Possession: Sometimes police will attempt to establish joint possession or constructive possession when the facts do not support such an inference.
- 4th Amendment Violation: There are a litany of reasons that a search might violate a defendant’s rights to be free of unreasonable search and seizure. The facts used to obtain the warrant might be false or distorted, so there is no probable cause to justify issuing the warrant. In other cases, the officers might exceed the scope of the warrant. For example, the officers might search in places that the warrant does not entitle the officers to look. In the case of warrantless searches, officers might improperly claim that exigent circumstances (emergency) or that consent for the search existed. Mr. Blumberg carefully analyzes all facets of a search in a drug possession case because exclusion of the drugs can mean a dismissal of all charges.
- No Knowledge: If you did not know you possessed the drug or that it was a controlled substance, you cannot be convicted of possession. If a person is arrested while wearing a friends jacket with no knowledge there were drugs in a hidden pocket, the accused would not have sufficient knowledge to support a drug possession conviction. Similarly, a person who is asked to store a can of paint could not be convicted for possession if the accused had no idea that the can contained drugs rather than paint.
- Miranda Violations & Involuntary Confessions: If the key evidence in your case is a statement obtained in violation of Miranda protections or subject to coercion, this may be a basis to exclude the confession.
- Lawful Possession: If you have a valid prescription for a controlled substance, you cannot be convicted for possession provided your possession is consistent with the prescription. However, a prescription will not provide a defense if you used a fraudulent prescription, engaged in doctor shopping or possessed more drugs than authorized by the prescription.
Sentencing for Drug Possession & Diversion Programs
While a conviction for possession of a controlled substance can result in county jail or state prison, you may be eligible for a diversion program. There are several options depending on your circumstances, which might include California drug court, deferred entry of judgment (PC 1000) and Proposition 36. Generally, these diversion programs provide a mechanism for non-violent drug offenders to obtain treatment instead of incarceration. Successful completion of these diversion programs can result in the charges being dismissed.
Whether Mr. Blumberg is challenging an unlawful search, cross-examining the government’s witnesses or arranging for a diversion program, he diligently pursues the best possible outcome for his clients. While not every individual qualifies for drug diversion, Mr. Blumberg can analyze your situation and advise you of your rights. We invite you call us at 619-525-9911 to learn how we can help.
- All California State and Federal Courts
- University of Miami, 2001 BA Political Science
- Emory University School of Law, 2004, Juris Doctorate
Admitted To The Bar: 12/2004
Professional Memberships and Achievements
- State Bar of California
- San Diego North County Bar Association
- North County Bar Lawyer Referral Panel
- San Diego County Office of Assigned Counsel Panel Member
- National Association of Criminal Defense Lawyers (NACDL)
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