Possession of Drugs with Intent to Sell
San Diego Drug Crime Attorney
In California, the crime of obtaining a controlled substance for the purposes of sale is punished by California Health and Safety Code § 11351, which states:
Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison for two, three, or four years.
Controlled substances applicable under this section include opiates and opiate derivatives, cocaine based stimulants and any derivatives thereof, amphetamines and any derivatives thereof and hallucinogenic substances including mescaline, peyote, tetrahydrocannabinols and any derivatives.
Possession with the intent to sell is essentially an allegation of drug trafficking or distribution, without proof of an actual transaction where drugs are exchanged for money. Though direct proof of sales may be absent, Heath and Safety Code §11351 is still a felony potentially carrying four years of prison (per count) and/or jail time if convicted. Unfortunately, it is common for innocent people to be arrested and prosecuted for having the intent to sell a controlled substance when their actual intent was merely for personal use. All too often these same individuals are later convicted primarily because of a failure to assert a proper defense to the charges that would have otherwise defeated such wrongful accusations of intent.
For these reasons, it is critical that your lawyer understands exactly how the prosecution will attempt to show your conduct went beyond mere possession involving actual intent to sell the controlled substance.In order for the prosecution to meet this burden it must prove:
- You had possession or a right of control over the drug, or that you purchased the drug,
- Knowledge of the drug's presence,
- Knowledge of the drug's nature as a controlled substance,
- The amount was enough to use or sell, and
- You had the specific intent to sell
Defending Possession with Intent to Sell Charges
Proving that an individual had control over the drug as well knowledge of the drug's presence and nature as a controlled substance is critical with regards to the possession element of the charge. Depending on type of drug, the court will have a general standard for which to determine the amount sufficient for use or sale. For example, the court may consider an ounce of marijuana or cocaine may be sufficient. The prosecution's most difficult and critical task will be to prove the element requiring a specific intent to sell the drug.Without intent, the charges may be plea-bargained to possession for personal use charges, resulting in possible fines and rehabilitation classes rather than jail time commonly given for felony intent to sell.
Because the mind-state of an individual is essentially impossible to prove, the prosecution will attempt to introduce circumstantial evidence such as:
- The quantity in possession
- Whether or not the quantity was found in separate containers or bags, or
- Whether or not any paraphernalia is found at the time of arrest
None of these factors are dispositive as to the element of intent. A skilled and experienced San Diego drug crime attorney can use any one of these factors to strengthen your defense against the prosecution's case. For example, regarding the issue of quantity, an individual may choose to buy in bulk for personal use to decrease risk by limiting the frequency of trips to the source, and to purchase their drugs at a better price. With regards to separate bags or containers, as is especially the case for qualified Medicinal Marijuana Patients accused of HS §11351, keeping their medicinal marijuana in separate bags or containers is consistent with controlling legally prescribed daily dosage. Finally, regarding lack of paraphernalia, if one lacks the tools necessary to ingest the drug at the time of arrest, it does not necessarily follow that they intended to sell the drug to another individual. Quite simply, this is an illogical and overly prejudicial argument which the court has the power to disregard. All too often prosecutors are able to slip this type of circumstantial evidence past inexperienced defense attorneys who fail to properly object based on lack of relevance and unfair prejudice to their clients. Without proper objections, and evidence presented to the contrary, the court is far more inclined to accept these arguments as true.
If you are arrested and charged with having the intent to sell and controlled substance, there may be number of defenses that are available to you, and the office will aggressively pursue all available defenses in your case. The validity of the search and seizure may be challenged if law enforcement did not follow strict constitutionally protected guidelines while obtaining evidence, when searching your person, vehicle, or home, or risk exclusion of evidence. Most importantly, there may be the defense that you simply did not have intent to sell. Absent evidence of intent to sell, the argument remains you were in possession for personal use without definite and reliable evidence to the contrary. Attorneys at The Law Office of Marc S. Kohnen have years of experience aggressively and passionately fighting for individuals accused of possession with the intent to sell.
If you or a loved one has been arrested and charged with possession with the intent to sell, contact a San Diego drug crime lawyer at The Law Office of Marc S. Kohnen today for a complimentary consultation regarding your legal options.