Drug Offenses

DRUG TRAFFICKING

The term drug trafficking has come to encompass any activity which furthers the sale of illegal narcotics. This will typically encompass several different drug related crimes at various stages of the sales process. Possession for sale and maintaining a place for drug sales are crimes that occur early in the drug trafficking process which involve the storage or preparation of narcotics prior to their actual sale. Transportation is an intermediate stage which involves the movement of the drugs from one location to another. Actual Sale/Distribution involves the final stage where the drugs are transferred from one person to another.

POSSESSION FOR SALE

Health and Safety Code sections 11351, 11351.5, 11359, 11375, 11378, 11378.5, 11379.2

Possession for Sale of illegal drugs arises in a situation where a person or persons are in possession of drugs, while at the same time have the specific intent, that those drugs are to be sold or distributed. The two keys area associated with this crime are the possession of the drugs and the specific intent that they be sold. A person can have either actual possession of the drugs or have the right to control the drugs either personally or through another person which is constructive possession.

Possession for Sale of an illegal drug is generally punishable by sixteen months, two or three years in county prison.

TRANSPORTATION AND ACTUAL SALE

Health and Safety Code sections 11352, 11360, 11379, 11379.5

Transportation is the movement (of any kind) of drugs from one location to another. Any movement of the drugs (driving, walking, etc.) encompasses the crime of transportation. However, transporting drugs for personal use, not sales, will carry a much lesser sentence. Actual sale is the exchange of drugs for anything of value. The exchange is not limited to drugs for money.

Transportation or Sale of an illegal drug is generally punishable by two, three or four years in county prison.

MARIJUANA POSSESSION

Health and Safety Code section 11357

Possession of marijuana is a criminal offense. Penalties depend on the amount possessed. Possessing marijuana for sale is treated as an illegal drug, as discussed above. The law concerning possessing marijuana for personal use depends on multiple factors, including the amount possessed, what is possessed, and where it is possessed.

Possessing Concentrated Cannabis – Concentrated cannabis is the separated resin (crude or purified) from marijuana. Possession of any amount carries a fine of up to $500, up to one year in jail, or both.

Possessing less than 28.5 grams – Possessing less than 28.5 grams of marijuana is an infraction, punishable by a fine of up to $100.

Possessing more than 28.5 grams – Possessing more than 28.5 grams is punishable with a fine of up to $500, up to six months in jail, or both.

Possessing less than 28.5 grams on school grounds – An person older than 18 who possesses
less than 28.5 grams of marijuana on school grounds, while the school is open for operation (for classes or other school-related programs), may be convicted of a misdemeanor; punishable by a fine of up to $500, up to ten days in jail, or both. A minor younger than 18 possessing less than 28.5 grams of marijuana on school grounds is also guilty of a misdemeanor; but will be punished with a fine of up to $250, for first offenses; or a fine of up to $500 and up to ten days in juvenile hall (or another comparable juvenile detention facility), for second and subsequent offenses.


Legal Aspects of Drug Offenses

CONSPIRACIES

Penal Code section 182

Drug conspiracies involve two or more people agreeing to some sort of drug trafficking and committing at least one overt act in furtherance of the conspiracy. These drug conspiracies can take place in low level cases where the amounts involved are small, all the way up to cases which involve multiple pounds or kilos of drugs.

WIRETAP CASES

Penal Code sections 629.50, 629.52, 629.56, 629.68, 629.70, 629.80, 629.82

A wiretap case arises when a law enforcement agency obtains a lawful court order to listen to the phone calls and read the text messages of a person that is the target of the investigation. Most wiretap cases are centered around people that are trafficking large amounts of drugs
(3 pounds or more). Law enforcement will use these wiretapped conversations to not only show that a person is participating in drug trafficking, but also to obtain physical locations of people, either through the actual conversation or GPS (Global Positioning Satellite). These wiretap cases typically result in criminal charges that have weight enhancements which add significantly more jail time onto a potential sentence.

ASSET FORFEITURE

Penal Code section 182.11

Under certain circumstances, a person’s property (money, cars, home) can be seized. This is referred to as asset forfeiture. In drug related cases, law enforcement has to be able to show that the property that is being seized was obtained as a result of the illegal drug trafficking or was used in illegal drug trafficking. A conviction for possession for sale, actual sale, transportation or a conspiracy to do any of those crimes, may result in law enforcement being able to successfully seize personal property through the asset forfeiture process.

SENTENCING ENHANCEMENTS

Health and Safety Code sections 11353.6, 11370.2, 11370.4, 11370.6

There are numerous sentencing enhancements that add years onto a drug sentence depending on the circumstances of the offense or based on prior drug convictions of the defendant. A few of those enhancements are as follows:

Add three, four, or five years for selling illegal drugs within 1000 feet of a school
Add three years for each prior conviction for Possession of Controlled Substance for Sale
Add three years for Possession for Sale or for Sale of Controlled Substance weighing more than one kilogram
Add two, three, or four years for possessing over $100,000 to purchase illegal drugs


Drug Treatment

PC 1000 DIVERSION

Penal Code section 1000

This is the lowest level drug sentence that a person can receive and is also known as deferred entry of judgment. It is only available where a person was arrested for a simple possession offense or a misdemeanor offense and has an extremely minimal prior criminal record. If a person is granted PC1000, he/she will enter a plea of guilty and will have the sentence postponed for a minimum of 18 months. If the person successfully completes a drug rehabilitation program, the court will dismiss the charges.

PROP 36 DRUG TREATMENT

Penal Code section 1210

This is the next level of sentence that a person charged with a minor drug offense can receive. Similar to PC1000, it is only available for non-serious, low-level drug offenders who have a minimal prior criminal history. Prop 36 is a form of probation and allows a person to complete a drug rehabilitation program under the supervision of the court. A person on Prop 36 probation is allowed three violations before the can be removed from the program. However, unlike PC1000, successful completion of the program does not result in the dismissal of the charges.

DRUG COURT

If a person is not eligible for PC1000 or Prop 36, he/she may be eligible for drug court. The drug court program is geared towards rehabilitating the addict. The court and probation department take a much more active role in the rehabilitative process and violations could result in short periods of custody. Typically, persons charged with possession for sale or transportation/sales of drugs are eligible to be placed in the drug court program if they do not have an extensive criminal history.