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Drug Offenses

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DRUG OR ANY DRUG RELATED OFFENSE

Drug offenses include, but are not limited to:  Under the Influence (HS § 11550); Possession of Narcotics (HS § 11350); Transportation of Narcotics (HS § 11352); Possess Methamphetamine (HS § 11377);  Possession of Paraphernalia (HS § 11364); Sales of Narcotics (HS § 11352); Possession for Sale (HS § 11351); Manufacturing Controlled Substance (HS § 11379.6).  These are main examples, but of course there are many other drug related offenses on the books, if your Code Section is not listed here do not hesitate to call Nicholson Law Offices to discuss the specifics.

Competent representation can help you avoid jail time and combat the system which is stacked against people charged with drug offenses and the additional charges which stem from them.  Do not make the mistake of thinking that because you were in possession of drugs at the time of arrest you should just plead guilty.  When represented at these hearings an attorney can arrange a plea-negotiation which will drastically limit the penalties that may be imposed.  Experience in these cases and the courtrooms in the area are invaluable in any plea negotiations or trial preparation.

MOTIONS TO DISMISS

Regardless of whether you are charged with simple possession, possession for sale, transportation/distribution or manufacturing of drugs, an issue that is always a factor is the manner in which the drugs were obtained by the police.  Criminal drug cases result from a variety of factual situations ranging from simple traffic stops or sophisticated undercover police sting operations to information obtained by way of a confidential police informant and search warrants.  Often police violate a person’s Constitutional rights in an effort to find drugs.  Whatever the case, challenging the search for and seizure of the drugs is essential to any successful criminal drug case defense and must be done in every instance where appropriate.  These motions are usually filed pursuant to Penal Code § 1538.5, used to get cases dismissed for illegal arrests, detentions, searches, invalid warrants, unlawful seizures, etc.  WE FIGHT TO PROTECT YOUR CONSTITUTIONAL 4TH AMENDMENT RIGHTS!

JAIL ALTERNATIVES

Fortunately, in California, non-violent drug users have the opportunity to avoid jail sentences and, in some instances, have their cases dismissed through participation in court ordered drug treatment programs.

Deferred Entry of Judgment (DEJ) – Successful completion of this program guarantees that your case will be dismissed. Participation requires that you plead guilty to the charge(s). Sentencing is then delayed for 18 months, which means that you will not have a conviction. You are then required to attend drug education classes for the first six months. Thereafter, if you manage to avoid another arrest or conviction for another crime, your case will be dismissed after 18 months.  Deferred Entry of Judgment (DEJ) can also be shorter time periods, depending upon various factors related to each individual case.

Proposition 36 – Successful completion of this program can result in your case being dismissed. This program gives first and second time non-violent, simple drug possession offenders to get substance abuse treatment instead of going to jail. Participation requires that you plead guilty to the charge(s) and are thereafter assessed to determine the level of addiction and a course of treatment is tailored to your needs. This treatment can include a number of things including, but not limited to, inpatient drug treatment, sober living, halfway house, outpatient treatment, drug testing, and drug education classes.

CODE SECTIONS EXPANDED

Health & Safety Code § 11550 makes it a misdemeanor crime to “use” or “be under the influence of” a controlled substance.  This includes illicit narcotics such as heroin, cocaine, methamphetamine, ecstasy and GHB. It can also include prescription drugs such as xanax or valium, if the person does not have a valid prescription.  A conviction for HS § 11550 carries a mandatory minimum penalty / sentencing of 90 days in county jail.  But most people charged with the offense do qualify for Proposition 36 or drug diversion under PC 1000.

Health & Safety Code § 11350 makes it a felony to possess narcotics such as cocaine, crack, heroin, ecstasy, ketamine, GHB and even prescription drugs such as Vicodin or Codeine (if they’re not lawfully prescribed).  A person convicted of “possession of a controlled substance” faces up to three years California state prison.  But most people accused of this crime are eligible for Proposition 36 or PC §1000 drug diversion.

Health & Safety Code § 11350 makes it is a felony to transport, import into the state, sell, furnish, administer or give away a controlled substance.  To prove a drug transportation charge, it must be proven that the transportation is for the ultimate purpose of selling the drugs.  A conviction for drug transportation can carry a sentence of up to five years in state prison

Health & Safety Code § 11377 makes it a crime to possess methamphetamine (also known as meth, crystal meth or speed).  This offense is a wobbler, which means prosecutors have the discretion to file it as a misdemeanor or a felony.  The district attorney usually decides this based on (1) the amount of methamphetamine involved, and (2) the person’s criminal history.  A person accused of HS § 11377 typically qualifies for Proposition 36 or PC § 1000 drug diversion.

Health & Safety Code § 11364 makes it a misdemeanor to possess “an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance.”  This includes hypodermic needles, pipes, bongs and cocaine spoons.   A conviction for HS § 11364 carries a penalty of up to six months in the county jail.  But this offense usually qualifies for a diversion program under Prop 36 or PC § 1000.  Moreover, these devices are often confiscated through an improper police search and seizure, in which case we may be able to get the whole case dismissed by way of a motion to suppress.

Health & Safety Code § 11352 makes it a felony to sell, furnish, administer, give away, transport or import into California an illegal narcotic. Many of the HS § 11352 cases arise out of undercover sting operations in which a decoy officer engages in a “controlled buy.”  Sometimes these stings run afoul of California entrapment laws and should be dismissed for that reason.  In some cases, officers claim to have witnessed a drug deal from an observation post or a disguised location.  But in reality, many suspects arrested for “selling drugs” were really just the buyers, or were not even involved in a drug deal at all.

Health & Safety Code § 11351 makes it a felony to possess illegal drugs for the purpose of selling them. This crime is more serious than simple possession, and does not qualify for Proposition 36 or PC § 1000 drug diversion.  In assessing whether a suspect possessed narcotics for the purpose of sales, cops and prosecutors will look to the quantity of the drugs, packaging in numerous separate baggies or bindles, scales, and weapons and/or large sums of cash. But unfortunately many innocent people get accused of HS § 11351 when, in fact, they only possessed the drugs for personal use.  Moreover, cops often use faulty information, unreliable police informants and even outright lies to obtain California search warrants. If our drug crimes defense lawyers can show that a search warrant was improperly obtained, most likely we can get the evidence suppressed and the entire case dismissed.

Health & Safety Code § 11379.6 makes it a felony to manufacture, produce, compound or process a controlled substance.  Common examples include operating a meth lab in California, or compressing marijuana resin into hashish.  To be liable for this offense, the person must actually have begun the process of making the illegal drug, rather than merely gathering supplies and preparing to do so.  A conviction for HS 11379.6 carries the harshest sentencing of any California drug law, up to 7 years in state prison.  The sentence can increase substantially if large volumes are involved, children are near the processing location, or someone is injured or killed in the process.

JAIL CRISIS IN CALIFORNIA – RELATED TO DRUG CONVICTIONS

We are in a seemingly insoluble budgetary crisis in California.  A significant part of this crisis results from the prosecution of the “War on Drugs.”  One of every six state employees is now working in the Department of Corrections.  California has 185,750 state employees, and 30,800 work for Corrections.  In 1990, the total number of full-time criminal justice personnel in the entire state of California was 146,157.  California is home to 25 prisons and 40 conservation camps.  In the past 12 years we have constructed 18 new prisons with five additional prisons planned for construction.
In our misguided effort of constructing 18 new prisons, we have taken money from libraries, schools, sports, prevention and music programs. We simply cannot have it both ways.  Taxpayers should be outraged at the average expenditure of $22,000 a year to house an inmate, while we wonder why basic children’s services are being gutted.  A number of factors contributed to the building of the largest prison system in the United States.  Politicians believed they could further their political careers by being “tough” on crime.  So, a tidal wave of punitive bills, signed by former Governor Deukmejian, burdened California with the highest incarceration rate in the world!  Now, we are encumbered with huge bureaucracies and solidly entrenched industries (DEI) who have built their own political machine to maintain their vested interests at our expense.
The proof of the atrocious political result is best demonstrated in the outrageous growth in prison population.  In 1980 there were 23,726 inmates in prison.  By 1992, prison population skyrocketed to 102,554. In 1990 there were 32,300 new law violators sent to state prison.  Of this number, 21% were for violent crimes, 34.5% were for property crimes, 31.9% for drug law violations, and all others were 12.6%.  Offenders who crave expensive drugs indulge in crimes of violence and property to sustain their habits.  It is estimated that 75% of the state’s offenders are serving time for drug or drug related crimes.   Drug Possession, Carl J. Cieslikowski