Possession of Methamphetamine For Sale | Health & Safety Code 11378 HS
Posted on March 11, 2017
In California, charges of possessing methamphetamine for sale are codified under Health & Safety Code 11378 hs.[1] The crime is accomplished when a defendant harbors the intent to sell rather than actually selling the substance. Prosecutors often consider the indicia of sales factors when charging and proving their case against you. Some factors include:
- A large quantity beyond personal use
- Having large sums of money consistent with street sales
- Scales, pay-owe sheets, small baggies
- Confidential informants providing information about you selling
- Your own admission to police of possessing the substance for sale
Ordinarily, HS 11378 charges follow from a search warrant authored by law enforcement after they’ve been provided information from a confidential informant. An informant maybe someone who has previously witnessed you sell methamphetamine or a person who works with law enforcement in staging a controlled buy.
Elements of Possession with the Intent to Sell
To prove you’re guilty of possessing methamphetamine for the purposes of sale under HS 11378, the District Attorney must prove the following:
- You were in possession of methamphetamine;
- You knew of its presence and character;
- The substance was a useable quantity;
- You harbored the intent to sell it.
What are the Legal Defenses to HS 11378 Charges?
Possession
The government may prove two types of possession: constructive and/or actual. Actual possession means the substance was found on your person whereas constructive possession means you had a right to exercise control of the substance. Constructive possession is often the disputed element for this offense because it’s vaguely written and open for interpretation. Whether someone had a right to exercise control is analyzed on a case-by-case basis.
Lack of Intent
Lack of intent to sell is common when someone is a heavy substance abuser. For instance, the quantity of the substance is beyond standard personal use but consistent with someone who is an addict.
Knowledge
There are two requirements for knowledge: you knew of the character and the presence of the substance. If their part is not met, then the government cannot prove their case. For instance, you may be in possession of an illicit drug but had no knowledge of its presence. Moreover, someone could have left it in your car.
Unlawful Search
Often times, drugs are discovered after law enforcement executes a search warrant, or vehicle searches, or home searches without a warrant. Any search by law enforcement must be carefully reviewed for any constitutional technicalities. If the court deems the search unconstitutional, then the substance(s) will be ordered suppressed. Consequently, the government cannot move forward with their case.
Mere Presence
Mere presence alone will not suffice for a conviction. Moreover, there must be additional evidence connecting you to the substance. Additional evidence may be an admission or eye-witness.
Punishment & Sentencing
CA Health & Safety Code 11378 is a straight felony that cannot be reduced to a misdemeanor. Consequently, a conviction carries a sentencing range of 16 months, 2, or 3 years in the county jail. Additionally, a conviction may carry the following consequences:
- A lifetime prohibition from possessing a firearm
- Adverse immigration consequences to non-U.S. citizens
- Loss or suspension of your professional license
- A felony on your record for life
Contact Us to Schedule a Free Consultation
Drug charges are a complex area of the law and there’s no question that you need a skilled and experienced Orange County Criminal Defense Attorney to handle your case. If you’ve been arrested, or are under investigation for drug sales, contact us today to schedule a free case evaluation about your options.
Legal References:
[1] Except as otherwise provided in Article 7 (commencing with Section 4110) of Chapter 9 of Division 2 of the Business and Professions Code, a person who possesses for sale a controlled substance that meets any of the following criteria shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code:
(1) The substance is classified in Schedule III, IV, or V and is not a narcotic drug, except the substance specified in subdivision (g) of Section 11056.
(2) The substance is specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d).
(3) The substance is specified in paragraph (11) of subdivision (c) of Section 11056.
(4) The substance is specified in paragraph (2) or (3) of subdivision (f) of Section 11054.
(5) The substance is specified in subdivision (d), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055.
