Possession for sale is also known as possession with intent to distribute drugs. This offense involves two basic elements: First, the drug possession itself. Second, evidence of intent to sell or distribute the illegal substance. This seems simple enough, right? Not quite—the legalities around each element can get confusing. At Monder Law Group we have a vast experience in these type of possession cases and are here to help answer any questions you might have. Feel free to contact us at (619) 405-0063.
Simple Possession vs. Possession for Sale
Mere possession of a controlled substance is unlawful in California, and so possession with the intent to sell is treated more seriously. The law can get complicated, so understanding each aspect of this charge will help you make the right decisions. Southern California courts divide this charge into two components: possession and the intent to sell. Each component is explained below.
In order for a judge or jury to find that a particular charge is convictable, the law establishes elements of each crime that must be proven beyond a reasonable doubt. The elements required for possession are:
- Exercise of control of or right of control of controlled substance;
- Knowledge of the presence of the controlled substance;
- Knowledge of nature drug’s nature as a controlled substance;
- Sufficient amount of unlawful substance.
Simply put: dominion, control, and knowledge are the elements of the crime of possession. All that is needed is knowledge; there is no need to further argue the subjective nature of the defendant’s mental state. This means the defendant does not need to have the specific intent to be charged with possession.
This is where intent matters—the second part of possession for sale charge. What this means is there must be some mental state of mind decided to sell or distribute the drugs to others. This is generally shown by circumstantial evidence, although an attempt to sell to a police officer or evidence obtained from buyers may be used as direct evidence of intent (as in “being caught in the act”). A critical note: a sale is not limited to transactions made in cash or other money forms, just anything that a value can be attached to. This element is codified in California Health & Safety Code §11351.
Possession for Sale: Prosecution’s Burden of Proof
To be convicted of possession for sale of controlled substances, the following must be met:
- A person exercised control over or the right to control an amount of the drug;
- That the person knew of its presence;
- That person knew of its nature as a controlled substance;
- The substance was in an amount sufficient to be used for sale or consumption as a controlled substance;
- That person possessed/purchased the controlled substance with the specific intent to sell.
Basically the essential elements of unlawful possession off a controlled substance are dominion and control of the substance in a quantity that is sufficient for consumption or sale, with knowledge of its presence and of its characteristic as a known illegal drug.
Aggravating Factors for Possession for Sale
Prosecutors are likely to charge someone with possession for sale if the following factors are involved:
- Large quantities of drugs
- Packaging of the drugs (separated in baggies/ units)
- Measuring scales
- Number of visitors coming in and out of your home
- Length of visitors stay
Penalties for Possession for Sale
Under Health & Safety Code §11350, a simple possession charge can be rectified with drug rehabilitation; this is not available as a sentencing alternative in most situations if you’re charged with possession for sale of a controlled substance. However a skilled defense attorney can, depending on the facts of the case, convince the prosecutor to amend the charge to one that permits the defendant to attend a program.
If you are convicted of possession for sale, you can be facing prison. If you are arrested for possession for sale of a controlled substance you may be charged with Health and Safety Code Sections §11351 or Heath and Safety Code §11378 depending on the type of controlled substance you were possessing. All drug sales charges are filed as felonies. Health and Safety Code Section 11351 carries a maximum incarceration time of 4 years in state prison while Health and Safety Code Section 11378 carries a maximum of 3 years in state prison.
Take notice that the maximum and minimum sentences vary for possession for sale, depending on any past criminal history, and any evidence of having sought drug treatment. Also, sentences may start between 2—4 years in prison, but increase rapidly to 20 or even 30 years if certain aggravating circumstances are proved (like having a large amount of the drugs, repeat offenders, etc.) are shown. The basic rule of thumb is the more of a drug you have and the more dangerous the drug is, the more likely it is that you are looking at a long prison sentence.
A skilled defense attorney can guide you through the nuances of available defensed, but here are the three common defenses to possession for sale charges:
- Unwitting possession: This means unknown possession. In other words, that you possessed a contraband substance without knowing you had it. Example: Borrowing someone’s car and not knowing they had illegal drugs in the trunk.
- Momentary possession: This means that you possessed the drug for a brief amount of time and in that time you intended to dispose of the substance and did not intend on law enforcement discovering it. All of these factors must be proved by a preponderance of the evidence by the defense—this is where a skilled criminal defense attorney will be of great benefit.
- Lack of intent to sell: Intent to sell can be difficult to prove without a clean confession, the prosecution will have to rely on circumstantial evidence showing that you possessed the substance for the purpose of selling it. Your criminal defense attorney can argue that you did not intend to sell the drug, but only possessed it for your own personal use. And if you hire a skilled criminal defense attorney who makes it impossible for the prosecution to make their case, then the entire case can be dismissed.
- Lack of possession: It may sound silly for someone arrested for drug possession to use this denial defense, but lack of possession happens all the time. This is typically used when the “dominion and control” aspect for constructive possession comes into play.
- Police abuse of power: A good defense to drug possession is that the police abused their power in discovering the drugs. Planted evidence, illegal search or seizure, illegal surveillance methods were used, or that unreasonable pressure or threats were made against witnesses or other parties are all examples.
It is important to note that a conviction for possession with intent to sale will not be eligible for any drug diversion program in California. Possession for sale is a serious charge, and convictions may result in severe sentences. However, there are defenses available to you if the drugs were for personal use, you did not possess a controlled substance, you were not aware they were narcotics, or the drugs were found in an illegal search or seizure. To determine which is your best defense, contact experienced San Diego drug attorney Vik Monder at (619)405-0063.