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Drug Related Crimes FAQ

The laws on drug-related crimes in California are constantly evolving as the state enacts criminal justice reforms.  While many of these changes are good news for anyone accused or convicted of a drug-related crime, it can make it hard to keep up with the latest laws.

If you or a loved one has been arrested on suspicion of a drug possession, sale, use, or any other drug-related crime, the Chambers Law Firm can help.  As a former prosecutor, attorney Dan E. Chambers understands how the system works — and will use his experience to help you get the best possible outcome.

Learn more about California’s drug laws here, with some answers to frequently asked questions.  If you require additional guidance, contact the Chambers Law Firm at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation.

What types of drug charges could I face in California?

The California Health & Safety Code defines many different types of drug crimes including:

  • Possession—if you have any type of narcotic (such as cocaine, crack, heroin, ecstasy, meth, opium) on your person or within your control, you could be charged with drug possession. This includes any prescription drug for which you do not have a legitimate prescription.  Under Proposition 64, the recreational use of marijuana became legal in California for adults aged 21 and older, in limited quantities.
  • Possession of Drug Paraphernalia—a prosecutor may file this charge if you have items associated with drug use, such as an opium pipe, bong, needle, or cocaine spoon, in your possession.
  • Possession for Sale— if you have a sufficient quantity of an illegal drug and/or drugs packaged in such a way that indicates intent to sell (example: drugs packed in small amounts in little baggies), you could be charged with possession with intent to sell.
  • Sale or Transportation—if you sell or transport illegal drugs into California, you may be charged with the sale or transportation of drugs.
  • Manufacturing—anyone who manufactures or creates drugs, such as methamphetamine or PCP, could be charged with drug manufacturing.
  • Use—if you are found to be under the influence of any illegal drug, or a legal drug for which you do not have a prescription, you could be charged with drug use.
  • DUI of Drugs—if you operate a motor vehicle while impaired by the use of any drug, you may be charged with a DUI of drugs.

Is marijuana legal in California?

 In November 2016, California voters approved Proposition 64.  Under Prop 64, the recreational use of marijuana became legal.  Adults aged 21 and older may possess up to one (1) ounce of dried marijuana or eight (8) grams of concentrated cannabis under California law.  Adults may also grow up to six (6) marijuana plants.

It is still against the law to possess marijuana if you are under the age of 21. Anyone under the age of 21 who possesses marijuana may be charged with an infraction.  Adults between the ages of 18 and 21 who are charged with marijuana possession will be punished by a fine, while those under the age of 18 will face a sentence of drug counseling and community service.

Importantly, marijuana is still illegal under federal law.  It is a Schedule 1 drug under the United States Code.  While federal prosecutors will not likely go after individuals who use and possess marijuana in accordance with California law, all Californians should be aware that they may be subject to federal criminal charges for possession of marijuana.  If you are charged with a marijuana-related offense, a drug crimes defense attorney can help.

Can I sell marijuana?

The passage of Prop 64 did not change California’s laws on the sale and transportation of marijuana.  It is still a crime to sell marijuana, or to possess it with the intent to sell it, unless you have a valid state and local license.

Violations of California’s marijuana laws are typically charged as misdemeanors.  However, if you have a serious criminal history, you may be charged with a felony offense.

Will my conviction lead to jail time?

A conviction for a drug-related offense will not necessarily lead to jail time.  Under Prop 36 and PC 1000, there are alternative sentencing options available, such as drug court and drug diversion programs.  These opportunities are available to defendants who are convicted of certain nonviolent drug related crimes. In many cases, upon the successful completion of a drug treatment program, the conviction itself can be set aside or dismissed.

Is entrapment a defense in California drug crime cases?

Entrapment is a potential defense in drug-related cases, particularly those involving drug sales.  However, entrapment can be difficult to prove, as it requires demonstrating that a law enforcement officer (or an agent of the police) engaged in conduct that cause a normally law-abiding person to commit a crime.  Consider a situation where an informant came to you in tears and told you that if you did not buy cocaine from him, he wouldn’t be able to feed his children this week.  If you would normally never buy drugs and you were swayed by his story, that may be considered entrapment. If you were a habitual cocaine user, then it would not be deemed entrapment.

Other types of entrapment may include coaxing, badgering, flattery, repeated requests or an appeal to friendship.  Establishing a defense of entrapment will depend on the specific facts of each case.  A skilled drug crimes defense attorney can work with you if you have been charged with a California drug offense to analyze the facts and determine if an entrapment defense is possible.

Can I petition to have my drug conviction reclassified?

Under both Prop 47 and Prop 64, this is a possibility for many Californians. Prop 47 reduced many drug possession crimes from felonies to misdemeanors, including Health and Safety Code sections 11350 (possession of certain controlled substances, usually cocaine), 11357 (possession of concentrated cannabis) and 11377 (possession of certain controlled substances, most commonly methamphetamine).  Prop 47 allows most people who have qualifying felony convictions in their past to petition the court to reclassify those convictions to misdemeanors. Petitions under Prop 47 must be filed by November 4, 2022.

Prop 64 legalized the use of recreational marijuana for adults aged 21 and older.  It also reduced the criminal penalties for most remaining marijuana offenses from felonies to misdemeanors and some misdemeanors to infractions.  Under this law, many Californians with a marijuana conviction can petition to have their felony convictions reclassified to a misdemeanor, and their misdemeanor offenses reclassified to infractions.  Some individuals may be able to have their prior convictions dismissed and sealed entirely.  An experienced drug crimes defense attorney can work with you to determine your eligibility to have your marijuana conviction reclassified or dismissed.

In September 2018, Governor Jerry Brown signed AB 1793, which will require all eligible marijuana convictions to be reviewed by the California Department of Justice for automatic recall or dismissal of sentence, dismissal and sealing, or reclassification.  Under the law, prosecutors must review all cases before July 1, 2020.  This law will end the need to petition to have your marijuana conviction reclassified or dismissed.

What is Prop 36?

 Proposition 36 is a criminal sentencing initiative that was approved by California voters in 2000.  Prop 36 requires that eligible non-violent drug offenders be sentenced to a drug treatment program instead of jail or prison.  Generally, the personal possession of drugs and being under the influence of drugs will qualify for participation in Prop 36.  Crimes excluded from Prop 36 include the sale of drugs, and possessing drugs with a loaded, openable firearm.

There are other restrictions on eligibility for Prop 36 sentencing.  For example, a person with prior “strike” convictions under California’s Three Strikes Law is ineligible (with certain exceptions.  Because the law is complex, working with an experienced drug crimes defense attorney will help you understand your options and how to best proceed.  Consult the Chambers Law Firm for a free consultation to discuss the specifics of your case.

Which alternative sentencing scheme is better for me?

There are two alternative sentencing schemes available for nonviolent drug offenders in California: Prop 36 and PC 100).  Prop 36 is available to a wider range of people, while PC 1000 has greater restrictions on its use.  If given a choice between the two programs, PC 1000 is the better choice.  It results in an automatic dismissal after completion of the treatment program, whereas a judge has discretion on approving dismissal with Prop 36 sentencing.  In addition, Prop 36 sentencing may require formal probation.

What is “deferred entry of judgment” or “diversion” in my drug case?

Deferred entry of judgment (DEJ) or diversion is a mechanism that allows defendants charged with certain drug offenses to enter a guilty plea, and then enter and complete a program.  Once completed, DEJ or diversion allows the defendant to withdraw his or her guilty plea and have the case dismissed. The defendant can then state that he or she has never been convicted of a crime. The program generally lasts about 6 months, and the defendant is eligible for a dismissal in 18 months. Eligible offenses for DEJ include simple possession for personal use, possession of drug paraphernalia, and being under the influence of a controlled substance. In order to take advantage of DEJ, the defendant must meet several criteria, such as no previous drug-related convictions, no prior felony convictions within the previous five years, and no previous grant of DEJ.

Do the police need to show you a search warrant when they serve it on you at your house?

No, they do not. There is no legal requirement that the police show you the warrant they are serving at the time of the search.

What is a DRE?

 DRE is a Drug Recognition Expert. It generally refers to a police officer who has received special training in identifying someone who is under the influence of narcotics.  They often testify in DUI of drugs cases to state their opinion that a driver was under the influence of drugs. The designation is the subject of much controversy because the training that is received has certain flaws that can be exposed during cross-examination of that officer. DREs are not used in every county in California.

How do I know if I’m at risk for DUI of drugs?

Unlike alcohol, there is no legal limit for the amount of drugs that you can have in your system while behind the wheel.  Although there are tests to determine the presences of drugs in your system (such as THC, the psychoactive component of marijuana), these tests do not analyze levels of impairment.  However, if you have displayed behaviors that may lead law enforcement officer to believe that you are impaired by drugs, then you may be charged with a DUI of drugs.

How can a drug crimes defense attorney help?

If you have been charged with a drug-related offense in California, a skilled drug crimes defense attorney can assist you in several ways.  First, your lawyer can analyze your case to develop defenses to the charges.  This may include filing motions to potentially have the evidence suppressed if it was seized illegally. Second, your attorney can use his or her experience to negotiate a favorable plea deal or a dismissal of the charges against you.  Third, if you do go to trial, your drug crimes defense attorney will aggressively defend you to hold the prosecution to its burden of proof.  Fourth, if you decide to plead guilty, your lawyer can help you enter into an alternative sentencing program to help you get your life back on track.

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