Possession of a Controlled Substance in California

Carrying certain drugs — even if you have a prescription — can put you in a potentially difficult situation with law enforcement. In California, carrying a controlled substance without a prescription is against the law, and you can face serious legal consequences. For those struggling with a substance use disorder, if certain criteria are met, charges may be expunged after successfully completing treatment at certain California drug rehab centers.

In this blog, we’ll briefly explain:

• Drugs that are classified as controlled substances
• Possession of a controlled substance
• Potential defenses to possession of a controlled substance in California
• Immigration consequences if caught with a controlled substance in California
• Expungement rights for drug convictions
• Whether a drug offense may impact your gun rights
• Do you need a lawyer to deal with a possession of controlled substance charge?

What is a Controlled Substance?

A controlled substance is a drug that has been regulated under the Controlled Substances Act (CSA). Drugs are added, amended, and removed from the schedule by the U.S. Drug Enforcement Administration. Drugs are listed on a schedule in one of five distinct categories, depending on a number of factors and defined under 21 U.S. Code 813, including: medicinal use, potential for abuse, risk of dependency, scientific evidence to support use, and risk to public health. 

The five different schedule categories include:

• Schedule I: These drugs have no medical use and pose a high potential for misuse. Examples include heroin, LSD, cocaine, PCP, and ecstasy.
• Schedule II: Drugs with medicinal use, but a high potential for dependence and abuse. Examples include stimulants like Adderall, methamphetamine, and opioids like OxyContin, morphine, and fentanyl. 
• Schedule III: Substances with a medicinal use and a low to moderate potential for abuse and dependence. Examples include, ketamine, codeine, anabolic steroids. 
• Schedule IV: Drugs with a medicinal use that carry a low potential for abuse and dependence. Examples include Xanax, Ativan, Tramadol.
• Schedule V: These drugs are defined as a lower potential for abuse than schedule IV drugs. They include cough medication with less than 200 mg of codeine. 

While these are federal regulations, each state has their own method of classification, monitoring, and law enforcement. California uses the CURES (Controlled Substance Utilization Review and Evaluation System) database to regulate schedule II-V controlled substances in the state. This data is available to public health officials, regulatory oversight agencies, law enforcement, licensed healthcare practitioners, and licensed pharmacists who need to access information about patients under their care. 

California law requires all healthcare practitioners licensed to prescribe scheduled substances to be registered in the CURES system.

What is Possession of a Controlled Substance?

Possession of a controlled substance means carrying a drug listed on the CSA without a valid reason. In California, it is illegal to carry a controlled substance without a prescription from a doctor, dentist, podiatrist, or a veterinarian licensed to practice in the state, under the California Health and Safety Code 11350(a) HS. 

California drug sentencing guidelines are enforced under California’s Proposition 47 - The Safe Neighborhoods and Schools Act. In most instances, drug possession of a controlled substance without a prescription is classified as a misdemeanor offense — also known as “simple drug possession.” However, in certain cases, illegal possession of narcotics can be classed as a felony if someone also has prior felony or sex crime convictions.

Each case and potential punishment depends on several factors, including:

• The amount possessed
• The drug or drugs’ schedule 
• The defendant's history

Typical punishments for simple drug possession in California include:

• Imprisonment: Convictions can be up to one year in a county jail, or three years for a felony conviction
• Court fine: A maximum fine of $1,000
• Drug treatment program: Also known as drug courts, these programs give certain defendants (in cases of non-violent possession charges) the right to seek treatment for substance abuse instead of receiving a jail sentence. When the person completes treatment and meets the conditions of the program, the drug charges are typically dropped. Failure to complete the program, however, can result in prosecution.
• Probation: Often combined with other punishments like fines, probation means the person convicted must follow a set of conditions listed by the court and regularly check in with a probation officer. If the conditions are not met, the offender may be imprisoned. 

Are There Any Defenses to 11350(a) HS?

Yes. There are three common defenses to HS 11350:

1. No possession: A person can only be convicted if they possessed a drug. Meaning a drug found on your person, in your pockets, or in your hands (actual possession) — or if you had knowledge and access to drugs, such as knowing the drugs were under the seat of the car and the ability to access them (constructive possession).
2. Lawful prescription: A person is not liable for prosecution if they have a valid prescription from a doctor, dentist, podiatrist, or veterinarian licensed in the state of California. Although, you still may be questioned by law enforcement. If the state decides to prosecute, they must be able to prove you did not have a valid prescription.
3. Unlawful search and seizure: Americans have the right, under the Fourth Amendment of the U.S. Constitution, to be free from unlawful search and seizure and arbitrary arrests. If law enforcement searched you without due cause, the evidence can be excluded from the case, and the charges are liable to be reduced or dismissed altogether.

Is Possession of a Controlled Substance a Felony in California?

Being found in possession of a controlled substance and the potential for prosecution depends on whether there is a legitimate reason for possession, such as: 

• Holding a valid prescription
• Having the authority and licensure to carry and possess controlled substances, such as a scientist or medical profession

If there is no valid reason for possession of a controlled substance or if the substance is deemed illegal, the person may face a charge and potential conviction. In most cases, drug possession charges are classified as misdemeanors. However, this depends upon several factors, such as:

• The quantity of the drug in possession
• Where the drug appears on the drug schedule
• Prior conviction history – if the person has other felony convictions, or they have been convicted of a sex crime and are currently on the California Sex and Arson Registry for sexual offences, then they may be prosecuted federally

What Are the Immigration Consequences of Drug Offenses?

Non-U.S. citizens can face serious immigration repercussions, such as deportation, if convicted of an offense, even if it is for a misdemeanor like simple possession. They may also be denied any future re-entry into the United States. 

How Does a Drug Conviction Affect Your Gun Rights?

There are certain circumstances prohibiting the possession of a firearm under California law, including:

• A felony conviction
• A person with substance use disorder “addicted to the use of narcotics”
• Two or more misdemeanor convictions
• A person currently with outstanding warrants, or under indictment for a crime punishable by imprisonment

Can You Get a Drug Conviction Expunged?

You may be able to get a drug possession conviction expunged under CA Penal Code 1203.4, if you have successfully completed probation, are not currently charged with any other offenses, and you are not serving a jail term. 

Many recovery community organizations hold expungement clinics for members who were previously convicted of drug offenses but are now successfully in addiction recovery.

What are the Consequences of a Possession of a Controlled Substances Conviction?

As with any offense, a conviction could have serious consequences on your life, as many applications and processes require declaring of all convictions. As such, possession of a controlled substance may impact:

• Your ability to find a job
• Your ability to get a loan
• Obtaining or maintaining any job requiring a license - you may also have your license revoked
• Maintaining your citizen status, as you may face deportation and revocation of visas due to non-US citizen status
• You may also face significant stigma and discrimination

Do You Need a Lawyer to Fight a Possession of a Controlled Substances Charge?

Any legal situation is best handled by legal professionals with experience and expertise. They will know your rights, be able to effectively navigate the law, present a solid defense, and work hard to keep you from being convicted. 

Facing charges without a lawyer can be incredibly challenging, and many people who choose to take this route quickly find themselves feeling stressed and overwhelmed. In representing yourself, you may not have a good grasp of the law or understand your rights. 

Even though there may be a cost involved with hiring a lawyer, losing your freedom and facing the negative consequences to your future may ultimately pose a much greater cost.

References:

California Department of Justice. (2020). Bureau of Firearms. Firearms prohibiting categories. https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/prohibcatmisd.pdf

California Legislative Information. Code Section. HSC 11350. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11350&lawCode=HSC

Cornell Law School. (n.d.). Legal Information Institute. Constructive possession. https://www.law.cornell.edu/wex/constructive_possession

Cornell Law School. (n.d.). Legal Information Institute. Fourth Amendment. https://www.law.cornell.edu/constitution/fourth_amendment

State of California Department of Justice. Controlled Substance Utilization Review and Evaluation System. https://oag.ca.gov/cures

United States Drug Enforcement Administration. (2018). The Controlled Substances Act. https://www.dea.gov/drug-information/csa

California penal code section 1203.4. (n.d.). Retrieved July 9, 2022, from https://california.public.law/codes/ca_penal_code_section_1203.4