Driving Under the Influence (DUI/DWI)

Possession of a Controlled Substance

What is the definition of possession of a controlled substance?

The definition for possession of a controlled substance is having a drug that is listed in the “Controlled Substances Act” without a prescription.

Health and Safety Code 11350, a misdemeanor, criminalizes the possession of certain opiates, opium derivatives, hallucinogenic substances, depressants, and Schedule III, IV and V that are narcotic drugs unless you have a valid prescription from a licensed professional. A common drug under HS 11350 is cocaine.

HS 11377 is essentially identical to HS 11350 and criminalizes the possession of Schedule III, IV, and V drugs that are not narcotics unless you have a valid prescription from a licensed professional. A common drug under this section is methamphetamine.


What are the penalties for possessing a controlled substance?

Crimes regarding possession of a controlled substance, whether it is methamphetamines, stimulants or other drugs, are all penalized similarly. Previously, crimes such as simple such as these could be charged as felonies or misdemeanors (“wobblers”). After Proposition 47 passed in California on November 4, 2014, some of these wobblers, including HS 11350 and HS 11377 are punished as misdemeanors only. This means that a conviction of any of these crimes can be punishable by imprisonment in jail, but not in state prison. If you are convicted of simple possession of a controlled substance, you can face:

  • Imprisonment in county jail for up to one year, and/or a fine of at least $1,000, or community service for a first offense
  • Imprisonment in county jail for up to one year, and/or a fine of at least $2,000, or community service for a second or subsequent offense

As stated in Health and Safety Code 11350(c)(3), “if a defendant does not have the ability to pay the minimum fines … community service shall be ordered in lieu of the fine.” Additionally, if you are eligible for a drug diversion program, you may choose that over jail time. 


What does the prosecution have to establish to convict me of possession of a controlled substance?

In order to convict you of possessing a controlled substance, the prosecution must establish that:

  • You unlawfully possessed a drug
  • You knew of its presence
  • You had knowledge that the drug you possessed was a controlled substance (regardless of whether or not you knew exactly what kind of drug it was), and
  • The controlled substance was in a useable amount
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In addition to the elements above, you can also be guilty of possession of a controlled substance if:

  • You had a substance that is an analog/equivalent of a controlled substance (similar chemical structure), or
  • Has, is said to have, or is meant to have a stimulant, depressant, or hallucinogenic effect on the central nervous system similar to or greater than the effect of a controlled substance.
How do I fight a possession of a controlled substance case?

There are many different ways to fight possession of a controlled substance cases. These defenses include: 

  • You did not possess the drug
    • This point seems a bit counterintuitive, but it is possible. For example, if you are pulled over and drugs were found near the site where you are pulled over; there is no evidence that it was you who put the drug there
  • You have a valid prescription for the drugs that you possessed
  • You did not know you possessed the drug
    • For example, if your friend puts drugs in his or her jacket and lends you the jacket, and you did not have knowledge that there are drugs in the jacket.
  • Law enforcement illegally searched your persons and found the drug
    • If the police find drugs on your property but did not have a search warrant or a valid reason to search you, the police cannot use the drugs they illegally found on you as evidence against you.
What should I do if I am being charged with possession of a controlled substance?

If you are facing charges for possession of drugs, there are many strong defenses that may apply to your case, so it is crucial to find an attorney who specializes in criminal defense. If you are seeking representation in court, or want to understand how a criminal specialist can help you, we encourage you to contact us at the Law Offices of Lisa Z. Liu. Attorney Lisa Z. Liu is a certified criminal law specialist who has helped many of her clients successfully fight their cases in court. She will personally handle your case to the best of her ability.

To schedule a free, confidential consultation with Attorney Lisa Z. Liu, please contact our office at (626) 988-6800 or by email to lisa@lisaliulaw.com.