Vista Criminal Attorney Law Firm is an aggressive, highly-rated, experienced law firm that is dedicated to serving and providing legal solutions to the Vista community in Southern California. We provide a team of attorneys with knowledge and skills in handling all kind of Drug possession cases. We have a history of a long list of clients who have received excellent outcomes involving drug possession. There are numerous defenses to drug possession cases, some include, the charge had no evidence of actual possession on the person or there was no consent of the possession. It is also valid to defend that the possession if the substance was not a controlled or illicit drug.

How is Drug Possession for Sale Defined in California?

The California Health and Safety Code 11351 HS terms it as illegal being in possession of a controlled substance without a legal prescription, for the purposes of selling it.  The controlled substances have been categorized under this penal code into schedules. Here are some of the controlled drugs according to their schedules:

  • Schedule (I): These drugs include mescaline, opiates and cocaine among others.
  • Schedule (II): These are drugs such as morphine, raw opium among other narcotics.
  • Schedule (III): These drugs include anabolic steroids and pentobarbital.
  • Schedule (IV): Drugs such as diazepam and zolpidem fall under this category.
  • Schedule (V): These include prescription drugs that are lesser controlled, for instance, codeine in low dosages.

Drug offense can be a felony in California State and can lead to prosecution since the possession is not leniently handled. According to the penal code 11351, one may not be charged with possession of drugs for sale for simply being caught with the drugs. This is because one may only possess a small amount of drugs for personal use, which may not indicate any intention of selling it. Also, in case one was arrested while under the influence of the substance, it may indicate that their intention was just for personal use and not for sale. This, however, cannot be treated as a conclusion, since most dealers also use drugs. Being arrested under the influence may also attract additional charges.

The prosecutor or the cops might find that the amount of substance one owns is too much to be considered for personal use. This may show that their intent was to sell or distribute the substance. Some of the other evidence that may be used to show that you possessed the drug for sale includes materials used for packaging such as bags, many packages of the drug, actual sales, frequently having visitors to your location, having measuring and weighing equipment among other tools. Undercover police may also be used to confirm that the sale of drugs actually takes place. Under this case, the undercover cop may come and buy drugs from an individual, and record the action to be used as evidence in court.

Types of Drug Possession

For one to be charged for drug possession for sale, it is not a must that they were caught physically holding the drugs. The possession of drugs for sale may also take place in other forms. The three main forms of possession are:

  • Actual Possession: This is the most common kind of possession and the one many people are familiar with. It involves being caught physically having the substance in one’s person. For instance, having the substance in pockets, or backpack.
  • Constructive Possession: This kind of possession is not always comprehensively defined. Under this possession, one can be charged for drug possession if the substance is within a place they can access it with ease. This may include someone’s house, desk locker or any other place. The prosecutor, in this case, must provide evidence that the substance was under the control of the defendant. This means that the defendant could easily retrieve the substance into physical or actual possession.
  • Joint Possession: This possession combines both constructive and actual possession in which two people can be accused of possessing a drug. If two people share a space in which the drug is found, they may be accused under joint possession of the drug. If two people or a group of people put together money to buy a controlled substance, they may be accused under this kind of possession.


Police find drugs in the basement of Dan’s house, which he jointly owns with his cousin. Since Dan and his cousin has joint ownership and control over the basement, and they perform illegal activities such as hiding and selling the drugs from the basement, both will may be convicted of both joint and constructive possession of the drugs.

What Must a Prosecutor Prove?

The following must be involved in order to be convicted of sale of drugs:

  • That a person actually possessed the drug.
  • The individual knew they were in possession of the drugs.
  • The controlled substance is efficient to be quantified for sale or consumption.
  • The individual possessed or purchased the substance had actual intent to sell.
  • If the individual was aware the substance was controlled.

Related Cases to Drug Possession with Intent to Sell

Under the Health and Safety Code 11351 HS of California, drug possession with intent to sell is related to various other offenses. Some of these offenses include:

  • Transportation and sales of controlled substances under Health and Safety Code 11352 HS. This penalizes actual transactions involving controlled substance as opposed to possessing drugs with purposes of selling them.
  • Possession of marijuana with intent to sell under the penal code 11359 HS.
  • Selling imitation controlled drug under penal code 11355 and 109575 HS.
  • Possession or sale of manufactured stimulants or marijuana, under penal code 11375 and 11357.5 respectively.
  • Possession, transportation, and sales of methamphetamines under penal codes 11377, 11379 and 11378 respectivel

Penalties for Drug Possession for Sale

In reference to California Health and safety Code 11351, one can be convicted of possessing controlled substances for sale without a proper prescription and face different penalties depending on various factors. Under this penal code, one may be fined, put under probation or face imprisonment in county jail or state imprisonment. These punishments vary with the circumstances surrounding the case, as well as ones previous convictions relating to possession of controlled substances. Under California’s bill passed in 2004, known as Proposition 47, some of the offenses related to drug possession can be punished as misdemeanor charges. Proposition 47 also allow prisoners to petition for resentencing. However, this does not apply to people convicted of other crimes such as murder, rape or registered sex offenses. While some of the offenses may be charged as a misdemeanor, most of drug possession charges in California are punishable as felony charges, if the defendant possessed the drugs for sale purposes. Such a person may face one of the following punishments:

  • Probation and imprisonment of up to one (1) year in county jail,
  • Two to four years of county jail imprisonment,
  • A fine of up to twenty thousand dollars ($20, 000),
  • One could be put in probation and additional community service, drug counseling sessions or work release program.

Terms of Probation

Once put on probation, the following are the terms that one is expected to observe.

  1. One should not violate any law,
  2. One should have frequent visits to the probation officer as required by the court,
  3. One should not absorb performing community service, and
  4. One should have random tests for drugs.

The prosecution can also provide evidence that one was intending to make multiple sales of the drug. The penalties can, therefore, be connected to each planned sale. Legal migrants may face deportation for a conviction for such a case.

Felony charges on drug possession for sale may be connected to the type of the controlled substance one possessed or the amount of the substance in one’s possession. For instance, possessing a highly dangerous controlled drug, like cocaine in large quantities may attract more harsh penalties.

Aggravating Circumstances

In case one was charged with possession of controlled substance for sale and, was also involved in the violation or any other aggravating circumstances, the penalties may be treated more seriously. The aggravating circumstances that may be involved with drug possession charges include committing the crime within 1,000 feet near a drug-free zone. Such drug-free zones include schools, playgrounds, youth centers, and swimming pools among others. Committing drug possession in presence of a minor, involving yourself in gang activities or possessing of firearms are also treated as aggravating circumstances, which may lead to doubling of the punishment.

Legal Defenses for Drug Possession for Sale Under California Law

When caught or convicted of drug possession for sale you require an expert in drug defense to fight for you effectively by establishing the right defenses. The defenses may be established according to the circumstances surrounding the charges. The following are some of the circumstances under which one may establish a defense against possession of controlled substance for sale:

  1. Possession for Personal Intake

For an individual to be convicted in possession of a substance for sale, there is a need for incontestable intention to buy or sell the substance. This means that even if you were caught under any kind of drug possession, you may have no intention to distribute the drug for sale. Personal use of a drug may be considered a less serious crime which may allow you to have drug diversion.

  1. You Were Not in Control of the Substance

If the individual is convicted in possession drugs for sale, the prosecutor must be having the proof that you actually were in control. Though it might be difficult in joint or constructive possession, an attorney may gather evidence to convince the court that the drugs were not under the control of the defendant.

  1. You were Illegally Searched Or Seized

In this case, you evidently found in possession under unlawful search, like harassment was involved during the conviction. Some of the circumstances in which one may raise an unlawful seizure claim include:

  • Search without a warrant: This is when someone was searched without the issuance of a California search warrant.
  • Searching beyond the range allowed by the search warrant: A search warrant authorizes a certain scope of searching. If the cops go beyond this scope, a defendant may raise a claim over illegal search. For instance, a search warrant may only allow the cops to search in your car, but the cops go ahead and search your house and offices.
  • Illegal detention: one may also raise a claim in case the police stopped them without a legal entitlement to do so. In such a case, they cannot use any drugs subsequently in the possession of the accused as evidence.

If the police obtained evidence against you through an illegal seizure, this evidence cannot be a substance of criminal trial.

  1. One was not Aware that the Substance was Controlled

For you to be convicted of possession of a controlled substance for sale, the prosecutor has to prove that you knew that the substance was controlled. If the person charged with drug possession was not aware of the substance being a controlled drug, and the prosecutor cannot prove that the individual knew that it was controlled, such an individual, therefore, cannot be convicted of this crime.

If the defendant has not been previously convicted of this crime, this defense works very well. This is because such a defendant is in a good position to convince the judge that they actually did not know that the substance was controlled.

  1. It was a Momentary Possession

Under the conviction of drug possession for sale under California Health and Safety Penal code 11351, the defendant may establish a defense by proving to the jury that he (defendant), was in a momentary possession of the substance. To justify this defense, one must prove to the jury that:

  1. They possessed the drug or controlled substance for a short transitory moment, and
  2. They possessed the drug with a purpose of abandoning, destroying or disposing of them, and
  3. They were willing to let the law enforcers obtain the drugs.

By convincing the court of the above elements, one may have their drug possession for sale charges dismissed.

  1. One had a Valid Prescription

When charged with drug possession, one will have a defense in case they had a lawful prescription written by a physician, podiatrist, or a dentist well recognized in California. For you to be convicted, the prosecution must, therefore, produce proof that you did not have a lawful prescription of the controlled substance. One may also argue that they have a condition that needs treatment with a controlled substance. However, being in possession of the substance in large amounts that exceed your personal treatment may be used by the prosecution to prove that you intended to sell the substance.

  1. One Did Not Possess the Drug

An individual may be acquitted of their charges if the attorney is able to convince the jury that the defendant was not the owner of the drugs they are accused to have possessed.


Mark was arrested possessing controlled drugs for sale. The following are the activities that led to the arrest of the mark. Mark had an agreement to buy the drugs from undercover police. They agreed on a meeting point and Mark agreed and went to the meeting point. Mark intended to buy a large amount of the substance with the purpose of reselling it. Mark met the cop and made his payments. He was just about to take the substance from the cop when he was arrested.    

Under such a circumstance, Mark’s defense can be established under the basis that none of the above actions indicate his possession of the drugs. The fact that he agreed to meet the undercover police, paying for the substance and being ready to take the substance cannot be used to suggest that he was in constructive possession of the drugs.

Drug Diversion

Some of the minor offenses or non-violent offenses involving drug possession may qualify for drug diversion in California. In such cases, an individual, instead of serving a jail term or prison sentence, they are allowed to serve the sentence in other programs such as drug treatment. One’s drug charges may be dismissed once they complete these treatment programs. Drug diversion cannot, however, be applicable in all drug possession cases. It also has a number of limitations. For instance, drug possession for sale case may not qualify for this treatment.

Find a Vista Criminal Attorney Specializing In Possession of Drugs for Sale Near Me

When you or a person close to you are charged with possessing controlled substances for sale, the case could be challenging if you do not have effective legal representation. At Vista Criminal Attorney law firm, we have attorneys with great experience in cases related to drug possession for sale. Our attorneys have the ability to evaluate all the circumstances in your case and establish a strong defense to enable you to get the best outcome for your case.  If you need our help in your drug possession with intent to sell case, do not hesitate to contact our Vista criminal lawyer at 760-691-1551 today.