Possession of a Controlled Substance
HS 11350(a) Law & Defense
There are many drug crimes in California. Perhaps the two most common drug crimes are possession of a controlled substance charged as HS 11350(a), and possession of a controlled substance for sale charged as HS 11351-F.
This article deals with the law, punishment, and defenses related to the crime of possession of a controlled substance. For information on the crime of possession of a controlled substance for sale, please see HS 11351.
HS 11350(a) Law Abbr.
Every person who possesses a controlled substance without a prescription is guilty of Health & Safety Code section (HS 11350(a) Abbrev.).
A controlled substance includes, but is not limited to: Codeine, Hydrocodone, Morphine, Oxycodone, Heroin, Cocaine, Norco, Vicodin, Oxycontin, MDMA, Mescaline, Methamphetamine, LSD, DMT, Ecstasy, Molly, Mushrooms, PCP, and more.
Note: There are enhanced penalties for possessing over a certain amount of drugs. The penalties increase as the amount in possession increases.
Possession of drugs may be actual or constructive. Actual possession means that the defendant has the drugs on his or her person or within his or her immediate control such as in the glove box of his or her car. Constructive possession means that the defendant does not have the drugs on his or her person, but has the authority to control the possession of the drugs such as having drugs at his or her storage unit. With constructive possession, the defendant does not necessarily need to be caught red-handed with drugs in his or her immediate possession in order to be charged with possession of a controlled substance (HS 11350(a)).
For example, if drugs are found at the defendant's home while the defendant is not home the defendant may be in constructive possession of the drugs.
Sentence for HS 11350(a)
HS 11350(a): Possession of a controlled substance is charged as a misdemeanor.
Note: Before proposition 47 was implemented, HS 11350(a) charges could have been filed as felonies. Now, HS 11350(a) charges are only filed as misdemeanor crimes.
Jail: If found guilty of HS 11350(a), Possession of a controlled substance, the defendant may face up to one year in the county jail. However, most jail sentences for HS 11350(a) violations are now served on work release or electronic monitoring (house arrest).
Probation: A probation sentence is a period of supervision instead of a jail sentence. Probation sentences are allowed in HS 11350(a) cases, but they are not guaranteed. Misdemeanor probation is monitored by the court (not a probation officer) and sometimes include work release or house arrest as a condition of probation.
Drug Offender Registration: If found guilty of HS 11350(a), the defendant is required to register with local law enforcement as a drug offender. Failure to register as such is a violation of probation and separate new crime.
Note: Possession of a controlled substance is neither a crime involving moral turpitude, nor a strike offense under California's Three Strikes Law.
Bail: $25,000 (felony HS 11350(a)); $5,000 (misdemeanor HS 11350(a)) [San Bernardino County 2020]
In addition to any possible jail sentence, other punishments for HS 11350(a) include: monetary fines and fees, enhanced penalties for future crimes, immigration consequences for non U.S. citizens, professional licensing consequences for licensed professionals, stay-away orders (restraining orders), firearm prohibitions, possible mandatory narcotics classes (NA classes), possible loss of rights in family court, and more.
Defense to HS 11350(a)
Defenses to California drug crimes are as varied and numerous as the number of drug crimes themselves. The most common defenses to possession of a controlled substance (HS 11350(a) include: insufficient evidence to prove a usable amount of a controlled substance, insufficient evidence to prove possession or sale, mistake of fact, statute of limitations, coerced confessions, police misconduct, illegal search and seizure issues, entrapment, and more.
To learn more about possession of a controlled substance (HS 11350(a), contact our criminal defense attorneys today for a free consultation. Our drug defense attorneys are successful and experienced and we are available everyday to answer all of your questions. Call today!
Quick Legal Reference
Crime: Possession of a Controlled Substance
Code: HS 11350(a) (CalCrim No. 2304)
Wobbler: Yes. HS 11350(a) is a wobbler crime. This means that HS 11350(a) is charged as a felony or as a misdemeanor.
Incarceration: HS 11350(a) prison sentence range: 16 months, 2 or 3 years. Misdemeanor jail sentence up to 1 year.
Probation: Probation may be available in both felony and misdemeanor HS 11350(a) cases (assuming additional crimes or enhancements that might restrict a probationary sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. Felony HS 11350(a) is not subject to PC 1170(h) sentencing. This means that any incarceration must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: HS 11350(a) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: HS 11350(a) is not a crime involving moral turpitude.
CIMT: HS 11350(a) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: Felony HS 11350(a) convictions prohibit a defendant from owning or possessing a firearm.
Registration: If convicted of HS 11350(a), defendant is required to register as a drug offender with law enforcement.
Bail: $25,000 (Felony); $5,000 (Misdemeanor) (San Bernardino)