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Possession vs. Intent to Sell

By Criminal Defense Attorney on June 4, 2019

Unlawful possession of a controlled substance is a crime in California that carries serious penalties, including up to a year of jail time. However, possession of a controlled substance with intent to sell is a much more serious offense. The difference between the two charges may hinge on the ability of the prosecutor to prove that you intended to a sell a drug in your possession. To get an experienced San Diego criminal defense attorney on your side, contact jD LAW, P.C., at (760) 630-2000.

What Is Possession of a Controlled Substance?

Under California Health and Safety Code Section 11350 HSC, it is unlawful to possess a controlled substance without a valid prescription. Controlled substances may be illegal drugs, such as heroin or cocaine, or prescription drugs that were not obtained with a valid prescription. Possession of a controlled substance is a misdemeanor, with penalties for a first offense that may include:

  • Up to one year in county jail
  • Fines not to exceed $70
  • Probation or parole
  • Random drug testing

What Is Possession of a Controlled Substance with Intent to Sell?

California Health and Safety Code Section 11351 HSC makes it a felony to possess or purchase certain controlled substances with the intent to sell. Upon conviction of these charges, among other penalties, you may be facing up to two, three, or four years in jail and fines up to $20,000. With possession for sale charges, you would not be eligible for a drug diversion program (to undergo treatment rather than jail time and to help you avoid a criminal record). With the help of an experienced, talented criminal defense lawyer, however, you may be able to successfully challenge that the drugs were intended for sale.

What Drugs are Included in Intent to Sell Charges?

State possession with intent to sell laws apply specifically to certain controlled substances. These include:

  • Heroin
  • Morphine
  • Depressants (such as Quaaludes or DMT)
  • Certain hallucinogens (such as peyote, LSD, and mescaline)
  • Cocaine
  • Codeine
  • Oxycodone
  • Hydrocodone
  • Fentanyl
  • GHB (gamma-hydroxybutyric)

What Are the Elements of Possession with Intent to Sell?

To convict you of the crime of possession of a controlled substance with intent to sell, the prosecutor must prove, beyond a reasonable doubt, that you:

  • Had unlawful possession of a controlled substance
  • Knew that the substance was present and illegal
  • Had the intent to sell while in possession of the controlled substance

Circumstantial Evidence of Intent to Sell

The most difficult of these elements for the prosecutor to prove is intent to sell. To be convicted under the law, the defendant must have intended to sell the drugs, either personally or through another party. The prosecution will most likely rely on circumstantial evidence to show your intent, such as:

  • A large quantity of the controlled substance found in your possession
  • Drugs packaged in baggies or in separate dosages
  • Presence of scales for weighing drugs
  • Large amounts of cash in your possession
  • People observed coming and going to your home

Defenses against Possession with Intent to Sell

If you have been charged with a serious drug crime such as possession with intent to sell, you need an experienced North County criminal defense lawyer to develop an effective defense strategy and to fight to achieve the best possible outcome in your case. When we represent you at jD LAW, P.C., depending on the specific circumstances, we may use any of the following or other defenses against charges of possession for sale of a controlled substance, or a combination of these strategies:

Illegal Search and Seizure

The Fourth Amendment to the Constitution guarantees freedom from unreasonable searches and seizures by the government. When making a traffic stop, search, or arrest, police officers must comply with certain procedures and formalities. If they failed to do so, evidence obtained in the illegal search and seizure may be inadmissible in court.

Lack of Control or Possession

To convict you of possession of a controlled substance with intent to sell, the prosecutor must prove that you had control over the drugs. Although the controlled substance may have been found where you were present, it may not have been an area over which you had control. For example, if you were pulled over as a passenger in someone else’s vehicle and drugs were found in the car, your presence alone could not convict you, unless the prosecution could prove that you had control over the drugs.

Lack of Knowledge or Awareness

One of the elements the prosecution must prove to convict you is that you knew of the existence of the controlled substance and knew that it was illegal. If your attorney can establish that you had no knowledge that the drug was in your possession, or you knew it was there but thought it was something else and not a controlled substance, you cannot be convicted under California law.

Lack of Intent to Sell

To convict you of this crime, the prosecution must prove that you intended to sell the controlled substance. Lacking a confession, this may be difficult to prove, and the prosecutor may be relying strictly on circumstantial evidence. If your lawyer can argue that you were in possession of the controlled substance for personal use only and did not intend to sell the drugs, your charges may be reduced to simple possession or dismissed entirely.

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Posted in: Drug Possession

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