Defending Drug Charges: Possession Or Purchase For Sale

Drug
defense lawyers in Orange County

California Health and Safety
Code Section 11351 says that any person who possesses for sale or purchases for
sale a controlled substance is guilty of a felony. Orange
County drug defense attorneys know that while many offenses are “wobblers”,
meaning that they can be charged as either misdemeanors or felonies, H&S
Section 11351, possession
with intent to sell, is a straight felony. It is punishable by a sentence
of two, three or four years in the state prison. While simple possession for
personal use of drugs like cocaine, methamphetamine, or heroin for personal use
under H&S 11350 can be “diverted” to drug programs such as PC 1000 or Prop.
36, possession or purchase for sale cannot be diverted.

Orange County criminal defense
lawyers like PC 1000 and Prop. 36 because successful completion of either
program will result in the dismissal of the charge. Moreover, there is no jail
time involved when a case is diverted to PC 1000 or Prop. 36. Unfortunately, no
such relief is available in a sales case and conviction will result in a felony
conviction on the defendant’s record and, even where probation is granted,
almost always results in jail time.

So what does it take for a
person to be convicted of H&S 11351—possession or purchase for sale? Well, any
experienced Orange
County drug defense lawyer will tell you
that in order to get a conviction for this charge the District Attorney must prove all of the following elements:

1)    That the accused exercised control or had the right to
exercise control over the controlled substance. (e.g. methamphetamine, cocaine,
heroin, Vicodin, etc.);

2)    That the accused had knowledge of the presence of the
substance;

3)    That the accused knew of the nature of the drug (that
it was an illegal drug); and

4)    That the accused had the specific intent to sell the
drug.

People v. Glass
(1975) 118 Cal.Rptr. 797. These elements can be proven by direct or
circumstantial evidence. For example, to prove the element that the accused
actually intended to sell the substance the police can introduce testimony from
an undercover officer or an informant that the defendant actually made or
attempted to make a sale. But such strong direct evidence is NOT needed to
prove intent to sell.

Other evidence found at the
scene, such as balloons for packaging heroin, substances used to “cut” heroin
or cocaine, or baggies used to package methamphetamine, are evidence to suggest
that defendant was going to sell the drugs. Also, a scale used to weigh
specific amounts of a drug, large amounts of cash, and “pay/owe” sheets are
typical evidence of sales. Moreover, as any Orange
County drug crimes lawyer will tell you, a large amount of a drug is also evidence
of sales. In one case the court held that possession by the defendant of 172
grams of uncut heroin afforded reasonable inference of possession for sale.
Peple v. Grant (1969) 81 Cal.Rptr. 812.

Irvine
drug defense lawyers know that another favorite piece of evidence used by
the DA to show sales is to show that the defendant has no other employment. Courts
have held that a defendant’s employment record is pertinent as it relates to
the defendant’s financial need to engage in the illegal sale of drugs. People v. Martin (1971) 95 Cal.Rptr.
250.

 

If you are charged with
possession a controlled substance for sale, or with any other drug crime in
Orange County, call The Law Offices of
EJ Stopyro at (949) 559-5500 for
a free and confidential consultation. We’ll discuss the facts of your case and
the many successful defenses used by Mr. Stopyro to defend against drug
charges. You can also visit us online at www.ejesquire.com.
We have meeting offices throughout Orange County and our main office is located
at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675

drug defense
attorney in Newport Beach