June 24, 2015

Possession of Methamphetamine (Meth) | HS 11377

Under California HS 11377, every person who possesses methamphetamine shall be punished by imprisonment in a county jail. In order to sentence a person for a possession of a controlled substance the prosecution will need to prove

1. unlawful possession of controlled substance,

2. knowledge of its presence,

3. knowledge of the substance’s nature or character as a controlled substance, and

4. the controlled substance was meth, and 

5. the controlled substance was in a usable amount.

Possession

The prosecution will need to prove that the defendant was in possession of the controlled substance. It does not necessarily mean that the defendant had meth in his/her pocket or in his/her hand. Possession if defined broader than that. A defendant has possession if he/she had control over the illicit substance. For example, as the defendant is being pulled over for a traffic violation, he gives a baggie of meth to his girlfriend to hide in her purse. Although, the drug is no longer in boyfriend’s physical possession, he still retained the right to control the drug. He can still be charged with possession of meth under HS 11377

Knowledge

The defendant does not need to know that he actually possesses meth. It is enough for the prosecution to prove that the defendant knew the nature and character of the illicit substance. The prosecutor still needs to prove that the defendant knew that he/she was in possession of a controlled substance (meth). For example, the defendant goes to the store to buy crystallized sugar, but unbeknownst to him, he receives meth in sugar packaging. He does not have knowledge that the substance he possesses is illicit. But if the same defendant goes to his drug dealer to buy meth, but he receives crystallized sugar instead, then he has knowledge that he possesses an illicit substance. This is true, even though he actually possesses sugar. 

Further, the defendant has to know the nature of the illicit substance. Although, the defendant might not know what exact substance he possesses (as shown above), he needs to know that the substance can be used as a drug. For example, the defendant has a substance, but states that he did not know it was an illegal drug. If he also possesses drug paraphernalia than it would show that he probably does know that it is a drug otherwise the drug paraphernalia becomes useless.  

Usable Amount

This requirement simply means “sufficient” amount to be used as a drug. The prosecutor should not be prosecuting cases where only traces of a drug were found on a spoon, tin foil, etc. 

Defenses

Momentary possession, lack of knowledge, a valid prescription from a licensed doctor are all valid defenses to the charge of possession of meth under HS 11377. All of these defenses go to the heart or elements of the crime. 

An experienced criminal defense attorney always considers the police conduct as a viable defense. Police always has to follow specific protocol. If police violates your constitutional rights, then the evidence seized should be suppresses. Please review pages on the 4th amendment right against unreasonable searches and seizures. These pages are found under FAQ tab on THIS PAGEWhen can police stop and search my vehicle? When can police search my house?

Sentencing

Possession of Methamphetamine under HS 11377 is considered a “wobbler” offense. This means that it can be charged as a misdemeanor or a felony. A misdemeanor conviction is punishable by up to a year in jail and a fine of up to $1,000. A felony possession is punishable by 16 months, 2 or 3 years in county jail and a fine of up to $10,000.

PC 1170.18 (Prop. 47), makes certain crimes that were previously felonies or wobblers in California law, and changes them to misdemeanors for all purposes, except gun for gun rights. 

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