California’s Health and Safety Code 11350 makes it illegal to possess drugs and chemicals classified as controlled substances. A controlled substance includes illegal drugs like cocaine and heroin as well as prescription drugs without a proper prescription. It is often called “simple possession” or “possession for personal use” since other statutes cover the sale of controlled substances. Simple possession is usually charged as a misdemeanor.
What Determines Simple Possession?
California’s law for the possession of a controlled substance is found in Health and Safety Code section 11350. It states that “every person who possesses... any controlled substance... unless upon the written prescription of a physician, dentist, podiatrist or veterinarian... shall be punished by imprisonment in a county jail for not more than one year.”
To prosecute someone for possession of a controlled substance, the government must prove:
- that the accused person possessed a controlled substance;
- that the accused did not have a prescription for that drug or chemical;
- that the accused was aware of the presence of the drug or chemical;
- that the accused knew the drug or chemical was a controlled substance, and
- the amount of the controlled substance in the possession of the accused was a “usable” amount.
Drugs and Chemicals Included
Which drugs or chemicals are included in the term “controlled substance”? A controlled substance is any drug or chemical whose use, manufacture or possession is regulated under the United States Controlled Substances Act.
There are quite a few different substances named in the federal law. Some of the more common controlled substances include cocaine, LSD and heroin, as well as prescription drugs such as Vicodin (hydrocodone), Oxycontin and codeine.
Neither marijuana nor stimulants (like methamphetamine) are covered under this code section. Laws regarding them are found in HS 11357 and HS 11377, respectively.
Definition of “Possession”
A person doesn’t have to be holding the controlled substance in her hand to be found in possession of it. An accused can be found to possess a drug or chemical if she has control of it personally or through a second person. For example, an individual can be found to be in possession of a drug if it is found in her closet, chest of drawers, the glove compartment of her car or in her handbag, even if the bag is in a car trunk.
Two or more people can be found to be in possession of the same drug at the same time. For example, if the drug is found in one person’s backpack, but that backpack is being held by a second person, both are in possession of it.
Definition of “Knowledge”
The accused must know that she is in possession of a controlled substance. This means that she must know of the presence of the drugs and that they are a controlled substance.
It doesn’t matter if she knows which controlled substance the drug is, however. If she is found holding a bottle that contains Vicodin tablets, but she thinks they are Oxycontin, she is still knowingly in possession of a controlled substance. If she thinks they were aspirin, she does not have the requisite knowledge.
Amount of the Drug
The statute also states that the accused possess more than a trace of the controlled substance. It uses the term “usable amount,” meaning that the amount must be enough for someone to use it as a controlled substance. It doesn’t have to be enough to make the person high, intoxicated or under the influence.
Penalties for Violation
A violation of the simple possession law is a misdemeanor and is usually charged as a misdemeanor, punishable by up to a year in county jail. However, if the accused has a prior felony conviction for a sex crime or a serious felony, it can be charged as a felony, punishable by up to three years in jail.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.