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HEALTH & SAFETY CODE §11378 – SALE OF A CONTROLLED SUBSTANCE
Retaining methamphetamines, or certain, other, controlled substances for sale is charged as a felony under California Health & Safety Code §11378. This statute also makes it illegal to have, for sale, non-narcotic controlled substances, such as stimulants, acid, PCP, ecstasy, anabolic steroids and ketamine. Compare this statute to H&S §11377 – which prohibits the illegal use of methamphetamines.
Methamphetamines – Background and History
Methamphetamines were developed in the 20th century from a parent drug, amphetamine. They were originally used as nasal decongestants and bronchial inhalers. Similar to amphetamines, methamphetamines are stimulants that increase energy and can bring about a certain sense of pleasurable euphoria. However, meth is more potent, longer-lasting and potentially more harmful than amphetamines. And because it is so powerful and addictive, meth is highly regulated and controlled by the federal government. See, “United States Controlled Substances Act.” Meth can also be injected in a number of ways, including by way of snorting, swallowing, smoking, injection or inhalation, in gas form.
How the Law Works
The prosecutor will need to show five elements in order to obtain a H&S §11378 conviction:
- You possessed methamphetamines or another controlled substance;
- You knew that you possessed a drug;
- You were knowledgeable that you were in possession of a controlled substance; and
- The amount of the drug you possessed was enough to sell it; and
- You possessed the drug with the specific intent to sell
California law distinguishes between three forms of possession or control:
- Actual control – the drugs were bound to the defendant in some way. For instance, this would include the defendant’s body or something else that they were dressed in;
- Constructive control – the drugs were not necessarily attached to the body or person of the defendant but the defendant retained control over the location of the drugs;
- Joint control – the defendant was sharing control of the meth with at least one other individual.
For this element, the government must demonstrate:
- You were informed of the presence of the controlled substance, and
- You had information of the drug’s status as a controlled
- Quantity is important in the prosecution’s argument that you retained enough meth in order to sell it. For instance, it would be easier to argue that a person was possessing meth for sale if they were found with 250 grams instead of, say, 5
- Quantity of meth in defendant’s possession. The amount of meth that the police, and later, the prosecution, claim you possessed can be important evidence of what you intended to do with it, such as selling or using it. Larger quantity is generally considered evidence of an intent to
- Manner in which the meth was being carried. Prosecutors will argue that separated containers – such as baggies – of meth, are evidence that the drugs were in your possession for the purposes of sale, and not
- Existence of equipment relating to sale. The government will also argue that the existence of items such as scales, razors and the like indicate that defendant was intending to sell the drugs. However, if the defendant is in possession of items that suggest use – including syringes, straws, cans or the like – their attorney could push forward the argument they were not trying to
- Other evidence. Witness statements, audio or tape recordings and previous convictions for selling drugs could also be used against you when the prosecution argues that you were trying to
Note: Under H&S 11378, a defendant does not need to be caught in the act of selling methamphetamine to be charged with that crime. Rather, the intent to sell may also be inferred by the evidence and facts of the case. For example, such evidence may include the presence of baggies (or other packaging materials), the amount of methamphetamine possessed (the greater the amount, the more likely that it is for sale and not use), the presence and amount of cash, a weighing scale, or other evidence that could suggest that the meth was intended for sale. If, however, the evidence suggests that you were in possession of meth for personal use, you are more likely to be charged with H&S §11377.
Defenses to H&S §11378
Your attorney may set forth the following defenses to a H&S §11378 charge:
- No possession. You were not in possession of the meth or other drug and/or it did not belong to
- No knowledge. You honestly were not aware that you were in possession of a controlled substance, such as
- Illegal search. Under the United States Constitution, California Constitution and case law, a person is protected against unreasonable government searches and seizures. Among other vehicles, an illegal search may be confronted by filing a Motion to Suppress Evidence. See, California Penal Code 1538.5.
- Coercion. If the authorities improperly pressured or threatened you to confess, or otherwise obtained a confession without reading you your rights, filing a Motion to Suppress may be
- Valid prescription. You had a legal prescription for methamphetamines which allowed for you to retain a certain amount of the
- Sara told Dara to hold her backpack for her while she went to grab lunch. Inside the backpack was a bag containing methamphetamine. Dara was not aware of the contents of the backpack or that it contained a controlled substance such as meth. If arrested for H&S
- 11378, Dara would have a potential defense.
- Jenny was pulled over for a missing brake light. While questioning her, the Sheriff’s Deputy glanced over and sees a purse in the back seat, which seems out of place. A further search revealed that the suspicious purse contained a large quantity of a controlled substance. Jenny will be arrested and charged under H&S 11378.
- The police believe that Sam was the prime suspect involved in an armed robbery at a local supermarket. An anonymous individual then contacts the police and claims that Sam is living at Kate’s apartment garage; this information then leads the police to apply for, and obtain, a search warrant from a local judge, which gives the police authority to search the apartment garage only. But, while searching Kate’s apartment, the authorities locate 220 grams of meth in Kate’s bedroom closet. As a result, the District Attorney’s Office charges Kate with possession of methamphetamines for sale. In this case, Kate’s
Examples of H&S §11378
attorney will likely file a §1538.5 Motion because the search warrant only pertained to Kate’s garage and not her bedroom. If successful, the motion will prevent the prosecution from using the 220 grams of methamphetamines against Kate, and their case will be severely weakened.
Punishment and Penalties for Violating H&S §11378
H&S §11378 is charged as a felony. The statutory punishment for this crime is as follows:
- Sixteen (16) months, two (2) years or three (3) years in jail; and/or
- A fine of up to ten thousand dollars ($10,000).
Furthermore, additional incarceration is possible under the following circumstances:
- If you were in possession of the controlled substance either on the grounds or within 1,000 feet of a drug treatment center, homeless shelter, or detox facility.
- If you possessed over one (1) kilogram of meth, you may face anywhere from three (3) to fifteen (15) years of state
- If a minor (a person under 18) helps you with the sale of meth, or is the intended buyer, you may face an additional three, six or nine-year prison
Note: H&S §11378 is not affected by Proposition 47 and cannot be reduced to a misdemeanor.
Drug Abuse Programs for H&S §11378
There are no diversion or abuse programs for cases involving possession of narcotics for sale.
Immigration Issues Relating to a conviction for H&S §11378
H&S §11378 is a very problematic conviction for anyone with immigration issues because, pursuant to federal law, H&S §11378 qualifies as a likely deportable offense. As such, severe immigration penalties are possible and likely. Please contact us for additional information or assistance.