Possession Of A Controlled Substance Now A Misdemeanor
In California, possession or a controlled substance use to be a “wobbler” meaning that it could be filed as either a misdemeanor or a felony, depending on the type of drug and other circumstances surrounding the arrest and prior criminal history. However, since the passage of Proposition 47, possession of a controlled substance is now a misdemeanor and although not as serious as a felony, being convicted of a misdemeanor drug offense can carry serious, long-lasting consequences.
I have been practicing criminal defense law in Orange County for more than 20 years and have gained extensive knowledge in defending possession cases. Knowing how the district attorney and police agencies build their cases has given me a great advantage in defending my clients and minimizing the consequences if convicted.
One of the most important pieces to the defense of a possession case is the actions of the law enforcement officer who first came in contact with my client. It is my job to review all discovery, looking for mistakes, inaccuracies and even blatant disregard for the law, on the part of the officers involved. It is not uncommon for officers to violate the law when it comes to search and seizure and it is my job to identify when this has happened.
Although there are those law enforcement officers who follow the law, there are also those who do not. Some of the more common violations that police officers make, along with search and seizure violations, may include: entrapment, writing police reports with inaccurate or missing information, in an effort to persuade the District Attorney to file charges, misleading judges in order to obtain a search warrant and arresting individuals without probable cause. When I am able to identify police misconduct, it creates a big problem for the prosecution and may lead to the suppressing the evidence presented against my client. This may then lead to an outright dismissal of the charges altogether.
So the key items that I look for are:
1) Was there probable cause to stop and search?
2) If drugs were found legally, who did the drugs belong to?
In order to the District Attorney to prove their case, the following elements must be met:
1) That you unlawfully possession a controlled substance
2) That you knew the controlled substance was in your possession
3) That you knew the substance was a controlled substance, and
4) That there was a usable amount.
There are times when the evidence is so overwhelming that some sort of guilty plea is inevitable. In this type of situation, my goal is always to find an alternative to jail or prison. Forcing the District Attorney to get to know my client as an individual and not as a criminal is something that I believe is extremely important. Maybe my client is an addict in need of a treatment program. This would be a better alternative to jail, which could result in a maximum of one year under the new law.
Anyone who has been arrested for possession of a controlled substance should contact an experienced criminal defense attorney to ensure that their rights are both protected and have not been violated.