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Health and Safety Code 11351

Possession with Intent to Sell in California

Like many states, California has several laws related to the possession of a controlled substance. Under California Health and Safety Code 11351 (HS 11351), it is a crime to possess certain controlled substances with the intent to sell them. HS 11351 covers illegal drugs, such as, meth, cocaine and heroin. It also includes prescription drugs, such as, Adderall, Vicodin, and Xanax. 

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How Can You Be Found Guilty of

Possession with Intent to Sell in California?

In order to convict a person of drug possession with intent to sell, there are five elements of proof, that the prosecutor must prove beyond a reasonable doubt. You will be accused of violating Health and Safety Code 11351 if:

      1. You possessed the drug,
      2. You knew of the substance’s nature or character as a controlled substance,
      3. You possessed enough of the drug to use or sell it, AND
      4. You possessed the drug with the intent to sell it or purchased the drug with the intent to resell it. 
      5. The controlled substance was a usable amount 

To understand this offense, it helps to break it down into two parts:  

Defining Possession

Under California Law, possession is equivalent to control. This means that possession isn’t only limited to the physical possession of the drugs (i.e. backpack or pocket). It can also mean that the drugs are within your control (i.e. at your house). Therefore, a person does not have to actually hold or touch a drug to exercise control over it. There are three types of possession. 

  1. Actual possession: Physical possession of the controlled substance.
  2. Constructive possession: Having access, or the right to control the drugs, even if it is not physically in your possession. 

Joint Possession: Two or more people possess a controlled substance at the same time.

Defining Intent to Sell

Below are some ways that the government can prove “indicia of sale”.

  • Packaging of the drugs in separate baggies
  • Possessing large amounts of cash, usually in small denominations (smaller bills of $1’s, $5’s, and $10’s)
  • Possession of scales or other weighing devices
  • Large quantities of drugs, exceeding typical amounts for personal use.  
  • People frequenting your home or place of sale for short amounts of time

You cannot be found guilty of this offense if you possessed large amounts of the controlled substances for personal use. The distinction is critical, because possession for personal use is a much less serious offense. Learn more about HS 11350 here [web link].

Consider the following example: Maritza is a habitual drug user who, due to her demanding job, stocks up on large amounts of cocaine. Since she is in possession of more cocaine than what the “average” person would have, the police would most likely assume that she possesses large amounts of cocaine with the intent to sell it. 

Penalties for Violating California’s

Drug Possession with Intent to Sell Laws

While simple drug possession charges often result in minor penalties, if you are convicted of possession of drugs for sale you may face greater consequences.

Possession with intent to sell as FELONY: 

  1. Two (2), three (3), or four (4) years of incarceration 
  2. Probation for three (3) to five (5) years 
  3. Up to $20,000 fine

If convicted of a felony, you may lose the right to possess a firearm, the right to vote, the right to sit on a jury, the right to hold public office, or you could potentially suffer immigration consequences. HS 11351 is not eligible for Proposition 36-diversion sentence [web link] or a deferred entry of judgment sentence [web link]

Defenses to

Possession of a Controlled Substance With Intent To Sell Case

A skilled criminal defense attorney in the Bay Area will employ different legal defenses to challenge a charge of possession of a controlled substance with intent to sell. There are many legal defense strategies to challenge a charge of possession of a controlled substance with intent to sell.

It may sound obvious or counter-intuitive, but “lack of possession” happens quite often. This defense can be used when the prosecution has the burden of proving that the defendant had “constructive” or “joint” control over the controlled substance.  For example, drugs in a house, where the homeowner is absent but a renter is present.

HSC 11351 not only criminalizes drug possession, but also the intent to sell it. Personal possession of a drug is a much less serious offense that could allow you participate in a drug diversion program. The amount of drugs found in your possession exceeded an amount typical of personal use. Possessing a large quantity of the controlled possession does not necessarily mean you intended to sell it. 

Illegal search and seizure may arise out of a warrantless search, a search that exceeds the scope of a warrant. For example, the police search the entire property when only a search of the basement was authorized. When law enforcement stops an individual or searches them in violation of their constitutional rights, any evidence gathered through illegal means can be suppressed. Your lawyers can file a motion to suppress evidence, and if the motion Is accepted, the charges might be dropped or dismissed. 

  1. Insufficient evidence 
  2. Lack of Awareness of Knowledge
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