As evidenced by the current prison population, the United States—as well as the state of California—is aggressively fighting the war on drugs. As such, even those convicted of a relatively minor drug offense may find themselves incarcerated. The Law Office of Vikas Bajaj, APC has spent the last 19 years defending against all drug-related crimes. Call San Diego drug crimes attorney Vikas Bajaj today for an initial consultation.
According to government statistics, 48 percent of federal prisoners were being held for drug crimes in 2011. This means any drug charge, no matter how minor, must be taken seriously with the strongest legal defense secured early on. Jail time, prison time, huge fines, and living the rest of your life with a criminal record can change your path in ways you may not even be able to imagine.
Add California’s harsh drug sentencing guidelines to the “three-strikes-and-you’re-out” policy, and even a recreational user could find his or her rights negatively impacted following a drug conviction.
Are You Facing Drug Charges in San Diego?
San Diego’s proximity to the border creates a much tougher stance on drug charges. This means the type of drug, the amount found, and whether you were using, distributing, or manufacturing, are factors the District Attorney will consider when determining which charges to file.
Since many drug crimes are considered wobblers, the D.A. will determine whether to charge you with a felony or a misdemeanor – and in many cases, the prosecutor will choose felony charges. That’s why it’s important to hire an experienced San Diego criminal attorney to aggressively represent you throughout the process. Call us today to discuss your case at (619) 525-7005.
Specific California Drug Crimes
Drug Possession
Drug possession in San Diego falls under Health and Safety Code § 11350. Marijuana possession is primarily a misdemeanor drug crime and possession of marijuana for an approved medical purpose is excluded from drug possession charges. Possession of GHB, ketamine, crack, cocaine, and prescription drugs with no prescription such as Vicodin, could be charged as a misdemeanor or felony, according to the circumstances surrounding your arrest. Under Health and Safety Code § 11377, methamphetamine (crystal meth) possession is also criminalized and is likely to be charged as a misdemeanor.
That being said, drug possession can be charged as an infraction, misdemeanor, felony, or wobbler based on the amount of drug in your possession, the type of drug, and your prior criminal record. The charges that are ultimately filed against you will have a significant impact on sentencing and the consequences you face.
Possession can occur in three different ways. Actual possession means you had the drug on your person or exercised direct control over it. Constructive possession means you had the right to control the drug, even if it was not in your possession (i.e. you gave your drugs to someone else to hold for you). Joint possession occurs when you purchase an illegal drug with another person, with the intent to share the drug.
Drug Possession with Intent to Sell
Health and Safety Code § 11351 makes it a crime to possess illegal drugs other than methamphetamine (or prescription drugs without a prescription) intending to sell those drugs to others. Health and Safety Code § 11378 makes it illegal to possess methamphetamine to sell the methamphetamine to others.
The rules for drug possession with intent to sell are different; wiretaps are admissible in court, and the judge will allow witness testimony, which speaks to suspicious activity at your home. Possession with the intent to sell is a felony offense, therefore bringing more serious penalties than simple possession.
A conviction for possession with intent to sell requires that the person charged was aware of the illegal drug, knew it was illegal, possessed sufficient amounts of the drug to indicate the intent to sell—and intended to sell the drugs. Items such as baggies, weapons, or large amounts of cash could influence how the crime is charged or the sentencing.
Drug Trafficking
Those who are transporting, importing, selling, furnishing administering, or giving away illegal drugs while crossing state lines to do so, (including methamphetamine) may be charged with drug trafficking. Charges of drug trafficking can result in severe, life-changing consequences. The penalties depend on the schedule of the drug, the quantity transported, and any prior criminal record as well as the intentions for the drugs in question. Given the severity of a trafficking conviction, you’ll need an experienced San Diego drug crimes attorney on your side.
Drug trafficking falls under Health and Safety Codes § 11352 and 11379 (for meth). Personal possession is not a requirement for drug trafficking charges, rather the drugs could be found in a vehicle.
Manufacturing a Controlled Substance
Most often, methamphetamine labs and marijuana cultivation will fall under the category of manufacturing a controlled substance (Health and Safety Code § 113796.6) The term “manufacturing” includes propagation, conversion, compounding, preparation, production, or processing. Any time a controlled substance is manufactured without authorization, it is a crime, and the person may additionally be charged with permitting the unlawful use of a building.
Penalties for Drug Crimes in San Diego
Penalties for drug possession will depend heavily on the schedule of drugs involved.
Schedule I drugs are considered to have the highest dangers, with a significant threat of addiction and no valid medical use. Drugs, which fall under Schedule I include:
- Mescaline
- Marijuana (In April 2015, a federal judge in California declined to remove marijuana from this list of most dangerous drugs.)
- Heroin
- LSD.
Schedule II drugs have an elevated risk of abuse and/or addiction but might have a valid medical use as well. Schedule II drugs include:
- Amphetamine
- Methamphetamine
- Opium
- Cocaine
- Methadone
Schedule III drugs are not as risky as Schedule II drugs but are still considered to have at least a moderate risk of abuse. Schedule III drugs include:
- Testosterone
- Ketamine
- Depressants
- Anabolic steroids
Schedule IV drugs are considered to have only a slight risk of abuse or dependency and have several accepted medical uses. Schedule IV drugs include:
- Prescription drugs
- Sedatives
- Tranquilizers
- Clonazepam
Schedule V drugs are those such as Tylenol with Codeine, with a relatively minor risk of dependency.
Possession of a drug for personal use will be charged according to the schedule of the drug as well as the amount.
- Possession could be charged as low as an infraction, with no jail time and a $100 fine, or as high as a misdemeanor with up to six months in jail and up to a $500 fine.
- Possession with intent to distribute is a felony charge, which could bring from 16 months to three years’ incarceration in the event of a conviction.
- Sale or delivery of an illegal drug is a felony, and the penalties depend on the age of the seller as well as the age of who the drugs were sold to. Penalties range from two years to seven years’ imprisonment.
- Cultivation of a drug (any amount) will be charged as a felony, and can bring from 16 months to three years’ incarceration in the event of a conviction.
- The chemical manufacture of hash and concentrates can result in a sentence of 3-7 years in prison and a fine as large as $50,000.
- The unauthorized manufacture of hash and concentrates can result in 16 months-3 years’ incarceration and up to a $500 fine.
- Vehicles and other property may be seized for controlled substance violations, and there may be a suspension of driving privileges.
- Using a minor in the unlawful sale or transport of marijuana is a Felony punishably by 3-7 years imprisonment.
- A gift or mere transportation of 28.5 grams or less of marijuana will be charged as a misdemeanor, and is punishable by a fine as large as $100. Production of identification and the signing of a written promise to appear in court is sufficient to be released for this misdemeanor crime.
- While there is no penalty for the simple possession of marijuana paraphernalia, delivery of marijuana paraphernalia by an individual 18 or older to a minor at least three years his or her junior is a misdemeanor. Penalties could include up to a year imprisonment and/or a fine as large as $1,000.
- Under California Penal Code § 1000, probation may be available for some marijuana offenses, however the offender must participate in education or treatment as determined by the court.
Potential Defenses to Your Drug Charges
The defense used in your particular case will depend on the specific circumstances, however, some of the more commonly used defenses include:
- Failure on the part of the police to comply with legal search and seizure rules;
- An argument that the drugs either did not belong to you or you had no knowledge they were in your home or vehicle;
- Mistakes made once the drugs are in the crime lab;
- Missing drugs (seized drugs can be transferred several times before ending up in an evidence locker);
- The drugs were planted (very difficult to prove, since an officer’s word carries significant weight), and
- Entrapment.
The Impact of Prop 47 – the Safe Neighborhoods and Schools Act
Proposition 47, which went into effect on November 5, 2014, mandates misdemeanors rather than felonies for specific, less-serious, nonviolent crimes—but the Act only applies to certain offenders who have no prior convictions for certain violent or serious crimes. The required misdemeanor sentencing of Proposition 47 applies to Health and Safety Codes 11350, 11357(a) and 11377 (Possession of a Controlled Substance and Possession of Concentrated Cannabis).
Those who are already serving sentences for drug possession crimes may also be able to take advantage of Proposition 47, as eligible petitioners may ask for a sentence reduction. A thorough review of the criminal history of the person who is petitioning, as well as a risk assessment to ensure the individual poses no threat to public safety will be necessary prior to resentencing. Petitions must be filed within three years of the time Proposition 47 went into effect.
Frequently Asked Questions about San Diego Drug Crime Law
The following questions about drug crimes and drug laws in San Diego are intended to provide you with a general idea of questions that we get from many different clients when it comes to their drug charges. California has a complicated legal relationship with drugs, so you must understand your rights as a drug user or someone who has been charged with alleged drug crimes.
To get the best answers to your specific questions about your drug law situation, contact us as soon as possible to schedule your initial consultation and get started on your own defense today.
Are there any drugs that are legal in California?
Marijuana and alcohol are both legal for recreational use by adults over the age of 21 in California. While there are no limits to the amount of alcohol that an adult may be in possession of, there are a variety of restrictions about marijuana, which is still a federally-outlawed Schedule I drug.
Has California decriminalized all drugs?
While California has a progressive stance towards recreational marijuana use, there are no other drugs that have been decriminalized on a state level, meaning that you will be arrested and charged with normal sentencing guidelines for the possession of any other scheduled drug.
Recently, Oakland became the second city in the United States to decriminalize “magic” mushrooms, and a variety of other natural psychedelic plants and cacti, but California does not recognize this decriminalization on a state level.
Can I still be arrested for marijuana charges since Prop 64 passed in 2016?
There are a variety of ways that you can still be arrested for marijuana in California, as there are a variety of restrictions around the possession, transportation, use, and sharing of the drug.
Users over the age of 21 are allowed to:
Purchase, possess, transport, gift, or process up to one ounce of marijuana flower or 8 grams of marijuana “concentrate”
Possess, cultivate, and process up to six marijuana plants in an area that is out of public sight
Use marijuana
Possess paraphernalia intended for the use and ingestion of marijuana
California prohibits the following behavior regarding marijuana:
Smoke marijuana in areas where smoking tobacco is prohibited
Possess or use marijuana within 1,000 feet of a school, daycare, nursery, or other area where children are cared for unless done discreetly in a private residence
Use marijuana while in a vehicle, whether as a driver or passenger
Operate a motor vehicle under the influence of marijuana
In addition to the restrictions around marijuana listed above, there are a variety of serious charges that can stem from the intention to distribute marijuana, transporting the drug over state lines, furnishing marijuana for a minor, and many more.
What is the difference between a possession charge and something more serious?
Being arrested for simple possession of an illegal drug is a charge based on the defendant being a drug user who had no intention to distribute the drug in question. While simple possession of a scheduled drug is illegal, the penalties for possession are much lighter than others.
If you are found in possession of significant quantities of a scheduled drug, or other things such as quantities of cash, drug scales, individual baggies, quantities of drugs divided into different portions, or any other indications that you were intending to distribute the drug, then you will be charged with any number of more serious charges like intent to distribute, or drug trafficking.
If you are charged with an intent to distribute or a trafficking crime, then you need to work with an aggressive attorney as soon as possible who can build a strong defense for your San Diego drug crimes.
What is an Intent to Distribute charge?
California Health and Safety Code 11351 outlines the variety of ways that a person can be charged with felony intent to distribute—or possession with intent to sell—drugs in California. This is a felony charge that can result in significant fines and incarceration if you are found guilty of these charges.
However, there are a variety of instances where the arresting officers may misinterpret the situation and charge a defendant with felony possession with intent to sell drugs when the individual either intended to use them personally or may not have even been aware that the drugs were there, to begin with. Intent to distribute is generally identified by the presence of other items that indicate sale and distribution, such as money counters, large quantities of mixed currency, scales, baggies, or other paraphernalia that is generally associated with transactions.
Why do I need to hire a drug crime lawyer?
If you have been arrested and charged with any type of drug crime in California, the most important thing that you can do is to hire a drug crime lawyer in San Diego who can immediately begin building a strong defense on your behalf. Drug crime is complicated in every state in the United States, and California is no different. In many cases, such as with intent to distribute, the initial charges are up to the interpretation and discretion of the arresting officers, who may misunderstand the situation and apply much more serious charges than are appropriate.
Whether or not the charges that you have received are appropriate, it is important that you work with a professional who understands the legal process, has a history of successes defending against drug charges and can work with you to identify a variety of paths forward towards a positive outcome.
Contact San Diego Drug Crimes Attorney Vikas Bajaj Today
Perhaps the single most important thing you can do after being charged with a drug crime is to contact a highly experienced San Diego drug crimes attorney who has extensive experience in defending drug charges. Attorney Vikas Bajaj will provide you with an honest evaluation of your case in order for you to understand the chances of a successful outcome and the potential penalties involved.
