Case Studies

Possession with Intent to Distribute Methamphetamines

October 12, 2018 by Michael Poole in Case Studies  Criminal Defense  
Thumbnail for: Possession with Intent to Distribute Methamphetamines

What Qualifies as Possession with Intent to Distribute Methamphetamines?

California Health and Safety Code §11378 states that it is illegal in the state of California to Possession with Intent to Distribute Methamphetamines them. This violation is a much more serious offense than that laid out in California Health and Safety Code §11377, and is treated as such by the criminal justice system. California Health and Safety Code §11377 deals with just the possession of methamphetamine and criminalizes the possession of such substance for personal use without a valid medical prescription.

As some methamphetamines can be prescribed legally by a medical professional for a wide range of health issues (most commonly Ritalin and Adderall for Attention Deficit Disorder issues and Desoxyn for Attention Deficit Hyperactive Disorder and problems with obesity) the mere possession of such category of drugs (Possession of Drugs, HSC 11350) is not inherently a crime so long as proof can be provided that they were obtained legally.

In addition, as noted in California Health and Safety Code §11377(c)(1)-(2), it is not unlawful for a person other than the prescription holder to possess a controlled substance such as methamphetamine so long as both of the following facts apply. “(1) The possession of the controlled substance is at the direction or with the express authorization of the prescription holder. (2) The sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner.” But this exception does not provide carte blanche, of course. As noted in California Health and Safety Code §11377(d), “This section does not permit the use of a controlled substance by a person other than the prescription holder or permit the distribution or sale of a controlled substance that is otherwise inconsistent with the prescription.” So, as can be seen, there is significant leeway given to individuals in possession of banned substances if the possession of such substances includes a legally obtained prescription. This prescription acts as a sort of hall pass, if you will, to be in possession of otherwise illegal substances.

However, the situation changes dramatically if an individual is found to be in possession of methamphetamines without a valid, medical purpose for such possession. Basically, an individual does not want to be caught without their hall pass. If this is the case, then the individual will most likely be charged with a violation of California Health and Safety Code §11377. California Health and Safety Code §11377, as it is a simple possession with intent to distribute methamphetamines charge, will be treated as a misdemeanor in California, and generally be treated with a lighter hand than if deemed to be in violation of California Health and Safety Code §11378, which we will cover next. The penalties involved in being found guilty of California Health and Safety Code §11377 include up to one year of county jail time and/or a fine of up to $1,000.

However, this crime can be elevated to a felony if the possession of the methamphetamine is done by an individual who has previously been convicted of either a sex crime or other such serious crime. A serious crime can be anything from premeditated crimes like murder to those of recklessness and the demonstration of a depraved heart, such as in certain manslaughter or second-degree murder cases. If this is the situation an individual finds themselves in, then the previously mentioned misdemeanor sentencing will no longer apply. Instead, an individual in this predicament will be facing a sentence range of 16 months, or two to three years in jail.

What Is Possession with Intent to Distribute?

Looking next to California Health and Safety Code §11378, we will look at how possession can transform into a charge of possession with intent to distribute. In order to be convicted of the charge of violating California Health and Safety Code §11378, five criteria must be met. Possession with Intent to Distribute a substance like methamphetamine can be proven if and only if an individual (1) physically possessed the methamphetamine, (2) knew that they possessed it, (3) knew that it was in fact a controlled substance that they were in possession of, (4) possessed a large enough quantity of the substance to be able to sell it, and (5) possessed such substance with the express intent to sell such substance.

Looking first to possession, there are three ways to be found in possession of a substance like methamphetamine: actual, constructive, and joint. Actual possession means what it sounds like, or in other words, the drugs were either being physically carried by an individual, or they were on their person in some fashion, whether in their clothing or in a bag or other way of transporting material. Constructive possession is when the material is not on your person, but rather in a location that you have control over accessing. Lastly, joint possession is a combination of the physical and constructive possession, except that you share this possession with one or more people.

As to the two knowledge requirements, both have to be established. It is not enough to know you are in possession of something. You must also know what you are possessing is a controlled substance. Both of these knowledge requirements must be established.

When looking to quantity, the amount of methamphetamine must be enough for it to be used as a controlled substance. Nominal amounts of a controlled substance are not enough. This is not to say that so much substance needs to be possessed as to get a person high, as this would be an unwieldy standard of proof. As noted in People v. Schenk, the court said, “We reject the contention that the crime of possession of a restricted dangerous drug requires that the quantity of the drug be sufficient to produce a drug effect.” 24 Cal. App. 3d 233, 238-239 (1972). But, instead, “…even if not pure, if the substance is in a form and quantity that can be used,” then it is considered a usable-quantity. People v. Rubacalba, 6 Cal. 4th 62, 66 (1993). There is no specific quantity or line an individual can cross where personal use becomes an intent to sell, so this is something to be mindful of when mounting a defense to a charge under California Health and Safety Code §11378.

Finally, when looking at express intent, there are a number of factors that the prosecution will examine to try to determine this. The most common factors include an individual’s own statements, the quantity of the substance, the packaging of said substance, and the existence of paraphernalia. The totality of this evidence will be looked at to determine if there existed an intent to sell. If an individual made any such statements, this would assuredly be used to establish intent. Likewise, if such a large amount of narcotics was found so as to beggar belief that it is for personal use, this can be used against the individual. Similarly, if the substance is packaged in such a way as to indicate that it is being divided up for sale (such as in small, individually packaged plastic bags), this can point toward an intent to sell. Lastly, if there is an absence of drug use paraphernalia found near the drugs themselves, this can indicate an intent to sell. For example, looking specifically at methamphetamines, if there are no pipes for smoking or straws for snorting, then it could indicate that this methamphetamine is not for personal use. None of these by themselves is dispositive, however, all will be looked at as a whole to determine the full picture of whether or not an intention to sell existed.

Which Drugs Qualify Under California Health and Safety Code §11378?

California Health and Safety Code §11378 does not apply to all drug classes though. The examples being discussed in this article deal with methamphetamines specifically, but California Health and Safety Code §11378 also covers non-narcotic based controlled substances, such as gamma hydroxybutyric acid (more commonly referred to as “GHB”), 3,4-methyl​enedioxy​methamphetamine (“MDMA” or “Ecstasy”), ketamine (“special K”), phencyclidine (“PCP” or “Angel Dust”), and anabolic steroids. Substances such as cocaine, opioids (both heroin and prescribed medications like oxycontin and fentanyl), hallucinogens, and marijuana-based drugs do not fall under this Health and Safety Code, and therefore will not be discussed.

What Penalties Are Associated with California Health and Safety Code §11378?

Much like a California Health and Safety Code §11377 charge of an individual who has previously committed a serious crime, California Health and Safety Code §11378 is treated much more seriously than California Health and Safety Code §11377. California Health and Safety Code §11378 charges are always treated as felonies in California. Therefore, the possible penalties faced by an individual accused of possession with intent to distribute is also 16 months, or two to three years in county jail. The fine, however, faces a significant increase, going from up to $1,000 to up to $10,000.

What Are the Sentence Enhancements Possible with a Charge of California Possession with Intent to Distribute Methamphetamines Health and Safety Code §11378?

In addition to the standard penalties discussed above, there are also a number of sentence enhancements related to violations of California Health and Safety Code §11378.

For example, California Health and Safety Code §11353 states that if a minor was involved in helping an individual possess methamphetamine for sale or is the individual being sold to, this adds three, six, or nine years on to the original sentence limits. To add even more to this, an additional charge under California Penal Code §272 can also be tacked on for contributing to the delinquency of a minor.

Additionally, the sentence can be increased dramatically under California Health and Safety Code §11370.4(a)(1)-(6), which contains large, increased penalties depending on the amount of narcotics involved. If the substance is in excess of one kilogram, an additional three years will be added on to the prison sentence. If the weight is in excess of four kilograms, then an additional five years will be added on. Going up from there, narcotics weighing in excess of 10, 20, 40, and 80 kilograms carry with them increased sentences of 10, 15, 20, and 25 years, respectively.

As is illustrated by these incredibly harsh add-ons, the state of California does not take possession with intent to sell lightly, and will add on lengthy, punitive sentence terms to anyone convicted of trafficking in large quantities.

What Are the Sentence Enhancements Possible with a Charge of California Health and Safety Code §11378?

In addition to the standard penalties discussed above, there are also a number of sentence enhancements related to violations of California Health and Safety Code §11378.

For example, California Health and Safety Code §11353 states that if a minor was involved in helping an individual possess methamphetamine for sale or is the individual being sold to, this adds three, six, or nine years on to the original sentence limits. To add even more to this, an additional charge under California Penal Code §272 can also be tacked on for contributing to the delinquency of a minor.

Additionally, the sentence can be increased dramatically under California Health and Safety Code §11370.4(a)(1)-(6), which contains large, increased penalties depending on the amount of narcotics involved. If the substance is in excess of one kilogram, an additional three years will be added on to the prison sentence. If the weight is in excess of four kilograms, then an additional five years will be added on. Going up from there, narcotics weighing in excess of 10, 20, 40, and 80 kilograms carry with them increased sentences of 10, 15, 20, and 25 years, respectively.

As is illustrated by these incredibly harsh add-ons, the state of California does not take possession with intent to sell lightly, and will add on lengthy, punitive sentence terms to anyone convicted of trafficking in large quantities.

What Are the Possible Defenses to a Charge of California Possession with Intent to Distribute Methamphetamines Health and Safety Code §11378?

The best way to defend against a charge of Health and Safety Code §11378 is to provide refuting evidence for the five elements that the prosecutor must establish listed above. Therefore, the best legal defenses involve arguing against actual possession and actual knowledge of such possession. This includes arguing that the individual thought the drug in their possession was a different, legal substance.

Adding to this, the establishment of the possession of a valid prescription for the methamphetamine or other substance is an effective defense, as is establishing facts to show that the substance was found during an illegal and unlawful search and seizure by law enforcement.

Finally, an often used defense is to argue that the possession of the substance was only for personal use, rather than for any intent to sell. As discussed above, if proved, this would eliminate the Health and Safety Code §11378 felony charge, and reduce it to the lesser misdemeanor charge of Health and Safety Code §11377, which is simple possession. An argument for possession rather than an intent to sell is helped by the presence of drug paraphernalia, such as pipes or straws, to show that the substance is being consumed. In addition, if the substance is found in one, or at most, a few, different containers, this helps refute the intent to sell argument. Much like the presence of multiple baggies can indicate that the narcotic is being readied to be distributed in small quantities to a number of individuals, the presence of a limited number of receptacles can demonstrate that it is not being prepared to be distributed. Lastly, the quantity matters greatly in establishing an intent or a lack of an intent to sell a substance. It is easier to affirmatively assert personal use if the quantity is smaller in size and weight. Likewise, if there is possession of a large amount of the substance, it is harder to argue that it is solely for the use of one individual.

We’re Here to Help

If you or a loved one is facing felony charges for possession with intent to distribute methamphetamines in the Southern California area, we invite you to contact us immediately for a free case review.

Need a Criminal Defense Attorney? CALL NOW: 310-274-6529

Seppi Esfandi is an Expert Criminal Defense Attorney who has over 21 years of practice defending a variety of criminal cases.

Possession with Intent to Distribute Methamphetamines Read our Client Reviews

Recent Victories

Contact Us:         
Esfandi Law Group QR Code
Esfandi Law Group
Lara S.
December 3, 2019
5
Seppi had my case reduced to just an infraction, and thanks to him I was able to keep my job. Jorge was extremely helpful too, the reason I went with this law firm. Overall pleased.

How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

Get a Free Consultation

    Free ConsultationForm