DRUG CRIMES

I’m charged with possession/possession for sale/sale of a controlled substance or other drug.   Am I going to be convicted? What is my defense?

The first place to look when charged with a crime is the California Jury Instructions, or CALCRIM. These jury instructions are what judges and juries use to decide whether or not to vote guilty or not guilty at trial. Although the vast majority of cases settle or resolve with a negotiated plea bargain, it is extremely important to know what the prosecutor must prove at trial in order to know precisely how to defend against these charges long before trial begins.

There are various drug offenses listed in California’s Health and Safety Code, but here are some jury instructions on the most commonly charged drug offenses.

2304. Simple Possession of Controlled Substance

The defendant is charged [in Count ______] with possessing <insert type of controlled substance>, a controlled substance.

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant [unlawfully] possessed a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance’s nature or character as a controlled substance;
  4. The controlled substance was<insert type of controlled substance>;

AND

  1. The controlled substance was in a usable amount.

usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.][Two or more people may possess something at the same time.][A person does not have to actually hold or touch something, to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.][Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.]

<Defense: Prescription>

[The defendant is not guilty of possessing <insert type of controlled substance>if (he/she) had a valid, written prescription for that substance from a physician, dentist, podiatrist, or veterinarian licensed to practice in California. The People have the burden of proving beyond a reasonable doubt that the defendant did not have a valid prescription. If the People have not met this burden, you must find the defendant not guilty of possessing a controlled substance.]

2302. Possession for Sale of Controlled Substance

The defendant is charged [in Count ______] with possession for sale of <insert type of controlled substance>, a controlled substance.

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant [unlawfully] possessed a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance’s nature or character as a controlled substance;
  4. When the defendant possessed the controlled substance, (he/she) intended to sell it;
  5. The controlled substance was<insert type of controlled substance>;

AND

  1. The controlled substance was in a usable amount.

Selling for the purpose of this instruction means exchanging <insert type of controlled substance> for money, services, or anything of value.

usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.][Two or more people may possess something at the same time.][A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.][Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.]

2300. Sale, Transportation, etc., of Controlled Substance

The defendant is charged [in Count ______] with (selling/ furnishing/ administering/giving away/transporting/importing) <insert type of controlled substance>, a controlled substance.

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant (sold/furnished/administered/gave away/ transported/imported into California) a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance’s nature or character as a controlled substance;
[AND]
  1. The controlled substance was<insert type of controlled substance>(;/.)

<Give element 5 when instructing on usable amount; see Bench Notes.>

[AND

 

  1. The controlled substance was in a usable amount.]
[Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value.][A person transports something if he or she carries or moves it from one location to another, even if the distance is short.][A person administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance.][A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.][The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/furnished/administered/ gave away/transported/imported), only that (he/she) was aware of the substance’s presence and that it was a controlled substance.][A person does not have to actually hold or touch something to (sell/furnish/ administer/transport/import/give it away) [it]. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

Whether or not you will be convicted of these charges largely depends on mounting a strong defense. We at The Hong Firm are committed to building a fierce defense for you – always in anticipation of trial.