Drug Possession (HS 11350) FAQ

California Health and Safety Code Section 11350 makes it illegal to possess controlled substances without a valid prescription. This statute is one of the most frequently charged drug offenses in California and applies to a wide range of controlled substances including cocaine, heroin, methamphetamine, LSD, oxycodone, hydrocodone, codeine, and other narcotics specifically listed under the California Health and Safety Code.

The law covers several forms of possession. Actual possession occurs when drugs are found directly on your person, such as in your hand, pocket, purse, or backpack. Constructive possession applies when you have control over the location where drugs are found, even if they're not physically on you, such as in your vehicle, home, or storage locker. Joint possession can occur when multiple people share control over the same drugs.

HS 11350 specifically excludes marijuana (which is now legal for adults 21 and over in California) and focuses on harder controlled substances. The statute was significantly impacted by Proposition 47, passed in 2014, which reclassified simple possession for personal use from a felony to a misdemeanor in most cases, fundamentally changing how these offenses are prosecuted and sentenced.

Since the passage of Proposition 47 in November 2014, simple possession of drugs for personal use under HS 11350 is generally charged as a misdemeanor rather than a felony. For a misdemeanor conviction, the maximum penalty is up to one year in county jail and/or a fine of up to $1,000. Many first-time offenders receive probation with drug treatment requirements rather than jail time.

However, there are important exceptions where HS 11350 can still be charged as a felony. Individuals with certain prior convictions may face felony charges, including those with prior convictions for serious or violent felonies listed in Penal Code Section 667(e)(2)(C)(iv), sex offenses requiring registration under Penal Code Section 290(c), or gross vehicular manslaughter while intoxicated. In felony cases, penalties can include 16 months, 2 years, or 3 years in county jail under California's realignment program.

Beyond criminal penalties, an HS 11350 conviction carries significant collateral consequences. These may include suspension of your driver's license for up to one year, immigration consequences including deportation for non-citizens, difficulty obtaining or maintaining professional licenses, challenges in finding employment or housing, loss of federal student financial aid eligibility, and negative impacts on child custody proceedings. Even as a misdemeanor, the conviction creates a permanent criminal record unless expunged.

Actual possession is the most straightforward form of possession and occurs when controlled substances are found directly on your person or within your immediate physical control. This includes drugs in your hand, in your pockets, in a bag you're carrying, in your purse or backpack, or otherwise within your direct reach and control. Actual possession cases are typically easier for prosecutors to prove because the physical connection between you and the drugs is clear and direct.

Constructive possession is more complex and applies when you don't have drugs directly on your person but still exercise control over the location where they're found. For example, drugs found in your car's glove compartment, under your bed, in your dresser drawer, or in a storage unit you rent can be attributed to you through constructive possession. The key legal principle is that you maintained dominion and control over the area where the drugs were discovered.

For the prosecution to prove constructive possession, they must establish beyond a reasonable doubt that: (1) you knew the drugs were present in the location, (2) you had the right and ability to control or access the drugs, and (3) you intended to exercise that control. This is significantly more challenging to prove than actual possession. Common defenses include arguing that other people had equal or greater access to the location, you didn't know the drugs were there, or the drugs belonged to someone else. In shared spaces like apartments with roommates or vehicles with multiple occupants, constructive possession becomes much harder to establish without additional corroborating evidence.

Yes, California offers several drug diversion programs that allow eligible defendants to complete drug treatment and education programs instead of serving jail time or having a conviction on their record. The most common program is Penal Code Section 1000, also known as "pretrial diversion" or "deferred entry of judgment." This program is available to first-time, non-violent drug offenders who have not been convicted of any drug-related offense in the past five years and have not used diversion in the past five years.

Under PC 1000, eligible defendants enter a guilty or no contest plea, but sentencing is postponed while they complete a drug treatment program lasting 12-18 months. The program includes drug education classes, individual and group counseling, regular drug testing, and compliance with all program requirements. Upon successful completion, the charges are completely dismissed and no conviction appears on your criminal record. However, if you fail to complete the program or violate its terms, the court will enter a conviction and impose criminal penalties.

Other diversion options include Proposition 36 (now largely superseded by Prop 47 but still available in some cases), drug court programs that provide intensive judicial supervision combined with treatment, and informal diversion offered by some district attorneys' offices. Drug court is particularly beneficial for individuals with serious substance abuse problems, offering comprehensive treatment, frequent court appearances, random drug testing, and case management services. Successfully completing any diversion program typically results in dismissed charges, avoiding the collateral consequences of a criminal conviction including employment difficulties, professional licensing issues, and immigration problems for non-citizens.

To secure a conviction for possession of a controlled substance under Health and Safety Code Section 11350, the prosecution bears the burden of proving each element of the offense beyond a reasonable doubt. First, they must prove that you unlawfully possessed a controlled substance. This means demonstrating either actual possession (the drugs were on your person) or constructive possession (you had control over the location where drugs were found and the right to control the drugs themselves).

Second, the prosecution must prove you knew of the presence of the controlled substance. This is a critical element because you cannot be convicted if you genuinely didn't know the drugs were there. For example, if someone placed drugs in your bag without your knowledge, you lack the required knowledge element. Third, the prosecution must establish that you knew of the substance's nature or character as a controlled substance. You don't need to know the specific name or chemical composition of the drug, but you must know it was some type of illegal drug. Believing you possessed legal vitamins or herbs when you actually possessed methamphetamine negates this element.

Fourth, the controlled substance must have been in a usable amount. Trace amounts or residue typically don't satisfy this requirement. The amount doesn't need to be sufficient to produce an intoxicating effect, but it must be measurable and have some utility as a drug. Finally, the prosecution must prove the substance is actually listed as a controlled substance under California Health and Safety Code. This usually requires laboratory analysis by a qualified criminalist who can testify that testing confirmed the substance is indeed a controlled drug listed in the relevant schedules. Failure to prove any single element beyond a reasonable doubt requires acquittal.

The "usable amount" requirement is a critical element in California drug possession prosecutions. A usable amount is defined as a quantity sufficient to be used as a controlled substance, meaning it must be more than mere traces, debris, or worthless residue. However, California law explicitly states that the amount does not need to be enough to produce an intoxicating or euphoric effect. Even a very small quantity can constitute a usable amount if it's measurable and has some utility as a drug.

Courts have grappled with defining exactly what constitutes a usable amount versus unusable residue or trace amounts. The key distinction is whether the substance can be ingested, injected, smoked, or otherwise consumed as a drug. For example, tiny crumbs of methamphetamine that could potentially be smoked might constitute a usable amount, whereas microscopic residue in a baggie that cannot practically be consumed would not. The substance must be solid enough and in sufficient quantity to be used, even if that use would produce minimal or no noticeable effect.

In practice, crime lab analysts measure and weigh seized substances, and defense attorneys often challenge whether the amount qualifies as "usable." Factors considered include the total weight, the form of the substance, whether it can be separated from adulterants or packaging, and whether it could practically be consumed. If the only evidence is trace residue in a pipe, baggie, or on a surface, skilled defense counsel may successfully argue the usable amount element hasn't been proven beyond a reasonable doubt, potentially resulting in dismissal of charges or acquittal at trial.

One of the most effective defenses to HS 11350 charges is lack of knowledge. If you didn't know the drugs were present, you cannot be convicted. This commonly arises in constructive possession cases where drugs are found in a shared vehicle, apartment, or other location accessible to multiple people. For example, if you borrowed a friend's car and police found drugs in the glove box that you had no knowledge of, lack of knowledge provides a complete defense. Similarly, if someone placed drugs in your bag or jacket without your awareness, you cannot be convicted.

Illegal search and seizure violations under the Fourth Amendment to the U.S. Constitution provide another powerful defense. Police must have legal justification to stop you, search your person or property, or seize evidence. If officers conducted an unlawful search without a warrant, probable cause, or your valid consent, your attorney can file a motion to suppress evidence under Penal Code Section 1538.5. If successful, the illegally obtained drugs cannot be used as evidence, often resulting in dismissal of all charges. Common Fourth Amendment violations include unlawful traffic stops, searches exceeding the scope of consent, and warrantless searches without applicable exceptions.

Additional defenses include valid prescription (you had legal authorization to possess the controlled substance), lack of possession (the drugs belonged to someone else and you had no control over them), insufficient usable amount (only trace residue was present), crime lab analysis issues (challenging the testing procedures, chain of custody, or qualifications of the analyst), planting of evidence by law enforcement, and entrapment (police induced you to commit a crime you weren't predisposed to commit). Each case is unique, and an experienced criminal defense attorney will thoroughly investigate the facts, review all police reports and evidence, and identify the strongest defenses applicable to your specific situation.

Having a valid prescription from a licensed physician, dentist, or other authorized medical practitioner is a complete defense to HS 11350 charges. California law recognizes that many controlled substances prohibited under HS 11350, including opioids like oxycodone, hydrocodone, and codeine, as well as stimulants like Adderall and certain anxiety medications, have legitimate medical uses. If you possess these substances pursuant to a lawful prescription issued in your name, you have not committed a crime.

However, several important limitations apply to the prescription defense. First, the prescription must be current and valid at the time of your arrest. Expired prescriptions do not provide legal authorization to continue possessing controlled substances. Second, the prescription must be issued in your name specifically. Possessing someone else's prescription medication, even a family member's or spouse's, is illegal and does not constitute a valid defense. Third, you must possess only the specific controlled substance listed on the prescription. Possessing a different drug or a different form of the same drug than prescribed provides no protection.

Additionally, possessing more than the prescribed amount can result in criminal charges. For example, if your prescription authorizes 30 pills but police find 100 pills, you may face charges for the excess 70 pills. The prescription must also come from a legitimately licensed practitioner following proper medical protocols. Prescriptions from unlicensed individuals, from "pill mill" doctors who prescribe without proper medical examination, or obtained through fraud or deception do not constitute valid prescriptions. If you have a prescription defense, you should immediately provide documentation to your attorney and the prosecution, as this can lead to dismissal of charges before trial.

Yes, HS 11350 convictions can be expunged from your criminal record under California Penal Code Section 1203.4, which allows you to withdraw your guilty or no contest plea, enter a not guilty plea, and have the case dismissed. Expungement provides significant benefits, including the legal ability to state you were not convicted of the crime on most job applications (with some exceptions), improved employment prospects, restoration of some rights, and removal of the stigma associated with a criminal conviction.

To qualify for expungement under PC 1203.4, you must meet several requirements. First, you must have successfully completed probation or, if not granted probation, completed your jail sentence. Second, you must have fulfilled all conditions of your sentence, including paying all fines, fees, and restitution, completing community service, and finishing any required drug treatment programs. Third, you must not currently be charged with a criminal offense, on probation for another offense, or serving a sentence for another crime. If you completed probation early or had it terminated early, you may petition for expungement immediately.

The expungement process involves filing a petition with the court that handled your original case, serving the petition on the district attorney's office, and attending a hearing where the judge determines whether to grant expungement. The court has discretion to grant or deny the petition based on factors including your compliance with probation terms, your overall conduct since conviction, your criminal history, and the nature of the offense. While expungement provides substantial benefits, it does not completely erase the conviction. The dismissed conviction can still be considered in future criminal proceedings to enhance penalties, and certain licensing boards and government agencies can still access the record. However, for most employment and housing purposes, you can legally state you were not convicted.

Simple possession under Health and Safety Code Section 11350 involves possessing controlled substances for personal use only. Since Proposition 47, simple possession is typically charged as a misdemeanor with maximum penalties of one year in county jail and a $1,000 fine. In contrast, possession for sale under Health and Safety Code Section 11351 is a much more serious felony offense that remains unaffected by Proposition 47. HS 11351 violations carry 2, 3, or 4 years in state prison, with additional prison time for large quantities or aggravating factors.

The key distinction between these offenses is intent. Possession for sale requires the prosecution to prove beyond a reasonable doubt that you possessed the controlled substance with the specific intent to sell it. Prosecutors rely on various factors to establish this intent, including the quantity of drugs (amounts far exceeding personal use suggest sales intent), packaging (multiple small baggies, bindles, or individually wrapped portions indicate distribution), presence of scales or measuring devices, large amounts of cash in small denominations, lack of drug paraphernalia for personal use, communications about drug transactions (texts, phone records), pay-owe sheets or customer lists, and expert testimony from law enforcement about sales indicators.

The difference between these charges has enormous practical consequences. While simple possession under HS 11350 may result in probation, drug treatment, or diversion programs with no jail time, possession for sale under HS 11351 typically results in state prison sentences. Additionally, HS 11351 convictions create more severe immigration consequences for non-citizens, including mandatory deportation in many cases. If you're charged with possession for sale but the evidence shows the drugs were for personal use only, an experienced criminal defense attorney may successfully negotiate a reduction to simple possession under HS 11350, dramatically reducing your potential exposure and preserving options for diversion or alternative sentencing.