Drug Possession for Sale

California Health and Safety Code §11351 makes it unlawful for a person to be in possession for the purpose of sale, or purchase for the purpose of sale any controlled substance. Controlled substances include, but are not limited to, the following:

  • Cocaine
  • Heroin
  • Opiates and Opiate Derivatives
  • Certain Hallucinogenic Substances

California Health and Safety Code §11359 makes it unlawful for a person to be in possession for the purpose of sale, or the purchase for the purpose of sale marijuana in any amount.

What Must the Prosecution Prove?

Prosecutors must show that a person had possession, knowledge that it was a prohibited substance, and that there was an intention to sell.

There are two ways possession may be proven: Actual possession or Constructive possession. Actual possession is when drugs are found on the person where possession is not in question.

Ex: Several baggies, with the same amount of drugs, are found in the person’s pocket.

Constructive possession is implied based on the facts. The substance does not have to be on the person, but may be found in an area over which the person exerts control or has exclusive control over.

Ex: Several Baggies of the same amount as well as scales are found in person’s backpack.

The person must also have knowledge that the substance in their possession was a controlled substance and made unlawful by legislations.

There must also be an intention to sell the controlled substance. In the absence of an intention to sell, it is only a case of Drug Possession, and not the more serious charge of Possession to sell.

How Does Prosecution Prove Their Case?

To prove their case, the Prosecutor uses a Totality of the Circumstances Method. The government uses the facts and circumstances of the case to demonstrate that there was possession, knowledge that it was a controlled substance and an intention to sell the substance.

EX: A person is found with a scale, stacks of cash, and 20 bags of heroin measured out to an equal amount in each bag hidden under blankets in the trunk of their car.

Prosecution will present an argument that there is possession because it is found in the trunk of the persons car; a place in which they have control and use to store their own belongings. They will further argue that because it was hidden, it indicates that the person was aware that it was an illegal substance to have in their possession. They will point to the fact that there were scales, cash and equally measured baggies to show the intention to sell the drugs.

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