ARTICLE OVERVIEW: Have you been caught with drugs in California? We describe the legal process here. Plus, a section on how drug courts and rehab can help.
TABLE OF CONTENTS:
- Specific Laws
- The Legal Process in California
- Burden of Proof
- Misdemeanor Possession
- Felony Possession
- Drug Schedules
- Other Penalties
- Alternatives Like Drug Court
- When to Contact a Lawyer
- Your Questions
In California, what does it mean to be legally charged with drug possession? Basically, if you are charged with drug possession, it’s because you are either holding a substance either on your person, in your vehicle, or in your place of residence. The state of California recognizes two different types of drug possession:
1. Simple Possession is when you are carrying an illegal substance on your for your own personal use.
2. Possession for Sale is when you are carrying an illegal substance with the intent to sell to others.
Both crimes result in penalties, However, Possession for Sale is a much more serious offense.
California Health and Safety Code 11350 HS 
Proposition 47 
Uniform Controlled Substance Act 
The Legal Process in California
When it comes to drug possession laws, how the legal process carries out depends on whether you are being charged for an infraction, a misdemeanor, or a felony. According to the California Criminal Justice System, the legal process typically follows these four basic steps: 
STEP 1. A Crime is Reported
In order for this entire process to start, a person first needs to break the law.
STEP 2. Arrest
Depending on witness information, you’ll be arrested by a police officer. This is usually followed by placement in a county jail, where you’ll have the opportunity to ask for and receive bail.
STEP 3. Prosecution
Your case will be heard in a state criminal court. In court, a county district attorney describes the charges and the evidence against you. Then, a judge or a jury will deliver a verdict and/or a sentence. Depending on your circumstances, you’ll either be found guilty or not guilty.
STEP 4. Corrections
Depending on the prosecution, you can receive a sentence for jail time, community service, fines, state prison, and/or other penalties. If you’re under the age of 18, your charges will differ from that of a legal adult.
If you’d like more information on the exact proceedings in the county in which you’ve been charged, you can find contact information on the State of California’s Department of Justice page.
Burden of Proof
The “Burden of Proof” is the legal presentation of evidence against you. In order for a California court to properly prosecute you for a drug possession charge, they must establish the following elements beyond a reasonable doubt. This includes evidence of the following:
1. The substance must be illegal. When you were arrested, the drug you were in possession of was seized by an officer and placed in an evidence storage room. In order for the court to properly prosecute you, they must have sufficient evidence that what you were holding was actually an illicit substance.
2. You must know that the drug is illegal. In order to be properly prosecuted, you must have actually known or should have known that the substance you were in possession of is illegal.
3. You must be in control of that drug. There must be evidence that you were had full control over the illegal substance. There are cases where people are holding an illicit substance and had no idea.
Q: What kind of sentencing can you expect for a drug possession charge in California?
A: It entirely depends on your situation.
In fact, it’s difficult to pinpoint exactly what kind of sentencing you can expect. A lawyer can be of great help, as they can get a sense of your circumstances. Further, you may be eligible for drug court. If you are struggling with drug addiction, ask about drug court. California drug courts help people receive treatment for addiction…rather than punishment for possession. More on this below.
Still, there are some general standards in sentencing. People who are in possession with intent to sell can expect to receive a higher penalty than those simply in personal possession. In fact, people who are caught with drugs for personal use will only be charged with a misdemeanor under the Proposition 47 law. Even more so, certain drugs like marijuana have now been legalized in the state. This means that those in possession of marijuana will not be prosecuted unless they are holding more than 28.5 grams. After that amount, it becomes illegal under Proposition 64 and you’ll be charged with drug trafficking.
Most of California’s drug laws are more lenient than that of other states. For example, many people are getting their prior marijuana possession charges expunged due to the new laws. In California, three charges exist for drug possession:
- An infraction
- A misdemeanor
- A felony
In the Golden State, all personal drug possessions are charged under a misdemeanor. These are crimes with less seriousness than felonies and, in turn, have less severe penalties. If you’re charged with a first-degree misdemeanor, you’ll receive the following penalties:
- A fine of up to $1,000.
- Up to 6 months of jail time.
It should be noted, people who are only receiving a misdemeanor for their drug possession charges will have the opportunity to testify in a drug court.  These are specialized courts which offer alternatives to traditional punishments. More specifically, drug treatment and rehabilitation options. You can find out more below.
In the state of California, there are 3 degrees of felonies. What the penalties for these felonies are depends on the crime. One way to better understand the severity of the charge is to identify the drug’s schedule. You can get a feel for possible penalties by either discussing the matter with a lawyer or going to court and finding out the judge’s verdict.
If you are caught in possession of drugs with the intent to sell OR break specific laws while in possession, you will be charged with a felony. Many times, felonies will result in a large fine, an average of $5,000 to $10,000, and a prison sentence between 2 to 20 years. These specific laws include situations such as:
- Aggravation or threatening of violence.
- Consuming illicit drugs on or near school property.
- Sharing illicit drugs with a minor.
In most states, each felony class will have a fixed set of punishments. However, in California, things are done a bit differently. Instead of a fixed punishment, California gives judges the freedom to decide a proper punishment based upon the defendant’s crime.
Legally speaking, there are five “schedules,” or drug classifications, which are designed to rank a substance in terms of how dangerous it is and its likelihood of abuse. Schedule I drugs are considered very dangerous. Possession of schedule I drugs in California can lead to the strictest of possible penalties or sentences. Possession of Schedule V drugs is considered less dangerous. The main drug schedules are as follows:
Schedule I. The drugs with the highest potential for abuse and are seen to have no accepted medical use.
Schedule II. The drugs considered the second highest for abuse and have some accepted medical use. Usually, with very severe restrictions.
Schedule III. The drugs with some potential for abuse and have accepted medical use. Medical professionals would consider their potential for physical dependence to be low and moderate while they have a high psychological dependence risk.
Schedule IV. Even lower chance of abuse than the prior and have accepted medical use.
Schedule V. The lowest chance of abuse and have accepted medical use. There remains some chance of both a physical and psychological dependence appearing, however, it’s very limited.
Besides fines and jail sentences, drug possession charges in California often have consequences which can be lifelong. Again, these penalties all depend on your situation. In addiction, the following penalties are also possible during sentencing for drug possession:
- Inability to obtain a state license or certification.
- Inability to become eligible for public housing.
- Inability to obtain certain employment.
- Inability to obtain some types of government employment.
- Inability to obtain scholarships and financial aid.
- License suspension, especially if you’re caught with possession in a vehicle.
Alternative Sentences Like Drug Court
When it comes to drug possession, the California State judicial system is forgiving. This is due to the fact that a drug dependence or addiction is also seen as a mental illness. Instead of facing jail time, you could find yourself in a rehabilitation center. This is the case when evaluating:
- The person’s needs.
- The person’s guilt or innocence.
- The specific laws which apply to the charge(s).
So, if you were only in possession of a personal amount of an illicit substance, you may qualify for a drug court. These are specialized courts designed to replace traditional punishment with treatment. Instead, drug courts in CA seek to rehabilitate you through 30, 60, or 90 day programs. It’s in California’s best interest to reverse criminal intent related to drug use and, therefore, there’s potential for you to trade in your jail time for something with a positive impact. In order to see if you apply for a drug court, you might want to speak to a lawyer.
In California, there are other options you can seek after receiving a drug possession charge. The following are legal arguments you may want to make at certain points during your prosecution. In order to make sure these arguments are effective, you might want to discuss it over with a lawyer.
1. Pretrial Diversion
You can only receive a Pretrial Diversion if you are a first-time offender of a nonviolent crime. It can be looked at as probation in which you must be accepted and will be responsible for:
- Drug tests
- Cannot commit further crimes
- Community service
- Reporting monthly to a supervising officer
2. Pretrial Intervention
Similar to a Pretrial Diversion, a Pretrial Intervention is set up for those who do have prior criminal offenses and seek out probation. If you’re accepted into this program, you will be responsible for:
- Not committing further crimes
- Drug addiction assessments and evaluations
- Drug treatment and rehabilitation
- Obey specific rules set out by court
- Regular court appearances
3. “Motion to Suppress”
Depending on your situation, you might have the opportunity to request a “Motion to Suppress”. This is when evidence is illegally obtained and, due to this, your case is automatically dismissed. Since many drug arrests are based on police’s speculation, there are often times where encounters become illegal. In order to get a true sense if your situation qualifies, you’ll want to talk over particular facts with a lawyer.
4. Submission of a Plea
For some individuals, it’s in their best interest not to receive jail time nor drug treatment. To instead carry on with their lives with as little consequences as possible. When you submit a plea, you’re negotiating a minimal probation sentence.
5. Go to Trial
You might not be guilty of the drug possession charge currently attached to your name. If so, you might want to go to court and plead innocence. Not only will you hold the potential to resolve the case, but you might even win something from the state.
When to Contact a Lawyer
Hiring a lawyer may or may not be in your best interest. Upon your arrest, you’ll have a general sense of how serious your drug possession charge is. Since each case is so unique and since California penalizes crimes on a case-to-case basis, a lawyer may be in your interest. S/He will have the ability to investigate these unique circumstances and fight for your best outcome.
However, you might not be able to afford a lawyer. If this is the case, you’ll want to see if you qualify for a public defender. In essence, these are free lawyers who provide legal advice which you can use to defend yourself.
Still have more questions concerning drug possession laws in California? If so, feel free to post them in the comments sections below. If you have further information regarding these laws or advice to give to people who have broken them, we’d also love to hear from you. We try to reply to each comment in a prompt and personal manner.