defense lawyers in Orange County
In parts I and II of this
blog I discussed the first two elements of the charge of Possession of a
controlled substance—Health and Safety Code Section 11350. In this final blog
dealing with the elements of a possession charge I’ll discuss the final two
elements; 3) that the person charged knew that the drug possessed was an
illegal drug; and 4) that there was enough of the drug to be used as a
controlled substance. These two final elements can also be fruitful ground for
your Orange County criminal
defense lawyer to defend against the charge of drug
possession.
blog I discussed the first two elements of the charge of Possession of a
controlled substance—Health and Safety Code Section 11350. In this final blog
dealing with the elements of a possession charge I’ll discuss the final two
elements; 3) that the person charged knew that the drug possessed was an
illegal drug; and 4) that there was enough of the drug to be used as a
controlled substance. These two final elements can also be fruitful ground for
your Orange County criminal
defense lawyer to defend against the charge of drug
possession.
Knowledge of What The
Substance Was
Substance Was
The DA must prove, beyond any
reasonable doubt, that the defendant charged with simple possession of a drug,
knew that the substance they controlled, either directly or constructively, was
in fact an illicit drug. For example, if a person is in possession of a white
powdery substance, and the person knows they possess this powder, they still aren’t
guilty of violating Health and Safety Code Section 11550 unless they KNEW the
white powder was an illegal drug and not something like baking soda or talcum
powder. However, as experienced Irvine
drug defense lawyers know, this element,
like the others, can be proven with circumstantial evidence.
reasonable doubt, that the defendant charged with simple possession of a drug,
knew that the substance they controlled, either directly or constructively, was
in fact an illicit drug. For example, if a person is in possession of a white
powdery substance, and the person knows they possess this powder, they still aren’t
guilty of violating Health and Safety Code Section 11550 unless they KNEW the
white powder was an illegal drug and not something like baking soda or talcum
powder. However, as experienced Irvine
drug defense lawyers know, this element,
like the others, can be proven with circumstantial evidence.
For example, if the police
find a balloon filled with heroin in the defendant’s pocket, the fact that the
defendant has a history of heroin use is circumstantial evidence that the
defendant knew the balloon contained heroin. Also, if the police officer also finds
paraphernalia in the defendant’s possession for using the heroin, such as a syringe,
this is also circumstantial evidence of the defendant’s knowledge. Other types
of circumstantial evidence commonly seen by Newport
Beach drug defense lawyers to show knowledge
include the fact that the defendant is on probation for a drug offense and “furtive”
movements by the defendant indicating a consciousness of guilt about the
substance.
find a balloon filled with heroin in the defendant’s pocket, the fact that the
defendant has a history of heroin use is circumstantial evidence that the
defendant knew the balloon contained heroin. Also, if the police officer also finds
paraphernalia in the defendant’s possession for using the heroin, such as a syringe,
this is also circumstantial evidence of the defendant’s knowledge. Other types
of circumstantial evidence commonly seen by Newport
Beach drug defense lawyers to show knowledge
include the fact that the defendant is on probation for a drug offense and “furtive”
movements by the defendant indicating a consciousness of guilt about the
substance.
Amount Must Be “Useable”
For a long time, not even Orange
County drug defense attorneys knew exactly
what this meant. And although the Supreme Court tried to clear up the
confusion, it still isn’t black and white. It used to be the law that the amount
found had to be able to “produce a narcotic effect”. But under the Supreme
Court case of People v. Rubalcava
(1993) 6 Cal.4th 62, there is no requirement that any potential
narcotic effect or purity be proven. The only time a usable quantity does not
exist is when it is a blackened residue or a useless trace. Of course, it is up
to the jury to decide what a “useless trace” is—and up to your Huntington
Beach drug defense attorney to convince
them.
County drug defense attorneys knew exactly
what this meant. And although the Supreme Court tried to clear up the
confusion, it still isn’t black and white. It used to be the law that the amount
found had to be able to “produce a narcotic effect”. But under the Supreme
Court case of People v. Rubalcava
(1993) 6 Cal.4th 62, there is no requirement that any potential
narcotic effect or purity be proven. The only time a usable quantity does not
exist is when it is a blackened residue or a useless trace. Of course, it is up
to the jury to decide what a “useless trace” is—and up to your Huntington
Beach drug defense attorney to convince
them.
If you are facing criminal
charges in the Orange County courts, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
telephonic consultation. You can also go to our website at www.ejesquire.com. Our main offices is at
32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.
charges in the Orange County courts, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
telephonic consultation. You can also go to our website at www.ejesquire.com. Our main offices is at
32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.
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