Posted on March 11, 2017

Possession of Methamphetamine For Sale | Health & Safety Code 11378 HS

In California, charges of possessing methamphetamine for sale is 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 may be someone who has previously witnessed you sell methamphetamine or a person who works with law enforcement in staging a controlled buy.


To prove you’re guilty of possessing methamphetamine for the purposes of sale under HS 11378, the District Attorney must prove the following:

  1. You were in possession of methamphetamine;
  1. You knew of its presence and character;
  1. The substance was a useable quantity;
  1. You harbored the intent to sell it.

Defending 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 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 substance is beyond standard personal use but consistent with someone who is an addict.
  • Knowledge: There’s two requirements for knowledge: you knew of the substances character and presence. 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, 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 carries adverse consequences to those holding a professional license, those seeking U.S. Citizenship, and may require you to register with your local law enforcement as a narcotics offender.

Contact Us to Schedule a Free Consultation

Drug charges are a complex area of the law and there’s no question that 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 the Law Offices of John D. Rogers to schedule your free case evaluation.  Early intervention by a skilled and experienced attorney could mean the difference of a jail sentence or having the case rejected completely.



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.

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