Possession vs. Possession for Sale: Drug Charges in California

In California, there is a distinct and important difference between drug possession charges and "possession for sale" charges. The first, though it may be charged as a misdemeanor or a felony, is a less serious offense and, depending on the type and amount of drug found in a defendant's possession and whether this is a first offense, may qualify the defendant for drug diversion. Drug diversion offers rehabilitation in lieu of imprisonment and can result in the ultimate dismissal of charges. Possession for sale, on the other hand, is a felony offense ineligible for drug diversion. A defendant may face years in state prison if convicted.

Let us take a look at the specific factors that distinguish possession and possession for sale charges under California law.

California Health and Safety Code § 11350 defines possession and outlines the penalties that may apply if a defendant is convicted under this section. It is important to note that this law applies to the possession of such controlled substances as heroin, peyote, cocaine and prescription medications like hydrocodone or codeine. It does not apply to marijuana, which typically carries far less severe penalties.

If a person is found to be in possession of a controlled substance, he or she may face up to one year in county jail and probation (if charged as a misdemeanor) or up to 16 months, 2 or 3 years in state prison (if charged as a felony). If this is a first offense, the defendant may qualify for drug diversion and may be able to undergo rehabilitation to avoid jail time.

Possession for sale charges are covered under California Health and Safety Code § 11351. This offense involves a situation where drugs have been found in a person's possession or on his or her property and additional evidence was discovered that showed an intent to sell or distribute said drugs. Prosecutors may pursue possession for sale charges if:

  • Large quantities of the drug or drugs were discovered; and/or
  • Other items were discovered that could indicate an intent to sell: scales or other measuring devices, baggies, business cards, client lists, large amounts of cash, suspicious text messages, or visitors at all hours of the day and night who only stop by for a short amount of time.

Possession of a controlled substance for sale is a felony offense punishable by 2, 3 or 4 years in prison and a maximum fine of $20,000. Enhanced penalties may apply in the presence of aggravating factors, which may include: purchasing or possessing cocaine base for sale, possession of one or more kilograms of cocaine, cocaine base or heroin. Penalties may increase to 25 years in prison and a fine of up to $8 million.

Challenging Drug Possession Charges

Both possession and possession for sale charges can be effectively challenged in the right circumstances. All it takes is a search and seizure violation, unlawfully obtained evidence or other key aspects of the prosecution's case that can be brought into question. Criminal convictions must occur only if there is proof beyond all doubt that the defendant committed the crime. This includes intent and knowledge when it comes to drug possession charges. It also includes evidence of the drugs themselves, and for possession for sale charges, of drug paraphernalia or other items that indicate sales or distribution.

What if law enforcement conducted a search of your property against your will and without a warrant? What if you were not read your Miranda rights prior to your arrest and a confession? There are various ways even the most seemingly solid evidence can be challenged. It takes a competent criminal defense attorney to determine how to best approach a defendant's case.

This is the level of counsel found at Lessem, Newstat & Tooson, LLP. Serving Los Angeles and the surrounding areas in Southern California, our legal team fights for the rights of arrestees, suspects and defendants facing drug charges and all other types of criminal charges. Take this opportunity to learn more about our firm and how we can help you by calling our offices. Early involvement of a criminal lawyer can make all the difference – contact us today.