HS 11377 Possession of Ketamine Law, Penalty & Defense. CA Criminal Defense Lawyers Explain Poss. of Ketamine & California Health & Safety Code 11377.
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Per California Health & Safety Code Section 11377(a), it is illegal to possess ketamine. The following summarizes the law, penalties and common defenses related to the illegal possession of ketamine.
HS11377(a) Law
Ketamine is a schedule III-controlled substance used for dissociative anesthesia, depression and pain management. The drug comes in a liquid form, but it is sometime dried and snorted as an illegal street drug.
Ketamine side effects include hallucination and euphoria. This makes ketamine popular as a street drug and as a “date rape” drug.
Ketamine may be prescribed by medical doctors, but ketamine is commonly sold, possessed, and manufactured illegally.
Possession of ketamine, or “Special K,” without a prescription, or other legal justification, is classified as a misdemeanor (HS 11377(a)). Possession of ketamine for sale is classified as a “wobbler” offense, which may be charged either as a felony or a misdemeanor (HS 11379.2). Being under the influence of Ketamine without possession is charged as a misdemeanor (HS 11550).
Possession of ketamine is either actual or constructive. Actual possession of ketamine means the defendant is holding or hiding the ketamine on his or her person (i.e., within clothing, holding in hand, hiding in shoe, etc.). Constructive possession means the defendant assert control over the ketamine even if the ketamine is not on the defendant’s person (i.e., in the defendant’s vehicle’s trunk, in the defendant’s bedroom, etc.).
Note: More than one defendant can actually or constructively possess ketamine at the same time.
Knowledge of Substance Required: To be found guilty of possession of ketamine under HS11377(a), the defendant must know that what he or she possesses is ketamine, as opposed to an actual belief by the defendant that the substance the defendant possesses is not ketamine.
Example: David gives Goliath ketamine to hold when David is pulled over by police, but Goliath does not know that what he received from David is Ketamine.
Result: David has constructive possession of ketamine because he asserts control over what he knows to be ketamine, while Goliath is not guilty of possession of ketamine because Goliath did not actually know that what he received from David was ketamine.
Note: Possession of ketamine for sale is usually classified as a felony (HS 11379.2); under the influence of ketamine without possession is usually charged as a misdemeanor (HS 11550); driving under the influence of ketamine is usually charged as a misdemeanor (VC 23152(f)).
HS 11377(a) Penalties
Simple possession of ketamine without a prescription, or other legal justification, is classified as a misdemeanor.
Note: If the defendant is a registered sex offender pursuant to PC 290, then possession of ketamine by that defendant is classified as a felony.
Jail Sentence: If found guilty of possession of ketamine (HS 11377(a)), the defendant may face up to one (1) year in the county jail. A probation sentence, with or without a jail sentence, may be available in some cases.
Probation Sentence: A probation sentence is a period of supervision, as opposed to incarceration. A probation sentence is common in HS 11377(a) simple possession cases, but a probation sentence is never guaranteed.
Whether or not the defendant will be granted a probation sentence after conviction for simple possession of ketamine depends on the criminal defendant’s criminal history, the facts and circumstances of the case, the terms of any negotiated plea bargain, and more.
Non-Moral Turpitude Crime: HS 11377(a) is not classified as a crime involving moral turpitude. For more information, see Crimes Involving Moral Turpitude.
HS 11379.2: Possession of ketamine for sale is classified as a “wobbler,” which means it can be classified as either a misdemeanor, or alternatively as a felony (HS 11379.2).
When HS 11379.2 is charged as a misdemeanor, the defendant will face up to one (1) year in the country jail. When HS 11379.2 is charged as a felony, the defendant will face up to three (3) years in the county jail.
In addition, possession of ketamine for sale (HS 11379.2) is considered a crime involving moral turpitude (CIMT).
HS 11377(a) Defenses
Common defenses to a criminal charge of possession of ketamine include insufficient evidence to prove the defendant “possessed” the ketamine, statute of limitations (one year from the date of the offense), coerced confession, illegal search and seizure, violation of Miranda Rights, entrapment, involuntary intoxication, mistake of fact as to the substance possessed and valid prescription.
Serna Defense: In some situations, the district attorney waits an unreasonably long time before filing criminal charges in HS 11377(a) cases. When this happens, and if there is prejudice to the defendant due to the unreasonably long delay in prosecution, the defendant may request from the court a dismissal of the criminal charges (See Serna Motion).
PC 1000 Diversion: Drug court diversion is available in most HS 11377(a) cases. Essentially, “diversion” means the defendant’s criminal prosecution is circumvented, or “diverted,” if the defendant agrees to, and successfully completes a pretrial diversion program. If the defendant successfully completes a drug diversion program, then his or her possession of ketamine criminal charges are dismissed (See PC 1000).
Post-Conviction Options: After criminal conviction of possession of ketamine (HS11377(a)), the defendant may have some of the following post-conviction options depending on the circumstance: appeal the misdemeanor conviction, withdraw guilty plea, expunge a criminal record, petition the court for a certificate of rehabilitation.
If you have been charged with possession of ketamine, or HS 11377, contact our criminal defense lawyers today for a free consultation. Our team of highly experienced criminal defense lawyers have successfully handled hundreds of drug crime cases in the Inland Empire.
We have criminal defense lawyers standing by to answer questions and we handle all HS 11377 cases charged in San Bernardino & Riverside County, including the cities and criminal courts of Redlands, Rancho Cucamonga, Ontario, Rialto, Yucaipa, Victorville, Fontana, Upland, San Bernardino, Riverside, Moreno Valley, Corona, Banning, Hesperia, and more. Call today!
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