California law makes it a crime to knowingly possess certain controlled substances without legal authorization. Although many simple drug-possession offenses are now misdemeanors, the consequences can become significantly more serious depending on the substance, the defendant’s prior record, whether there is evidence of intent to sell, and other circumstances.
California’s drug-possession laws have changed substantially over the years. In particular, Proposition 47 changed many offenses that were previously prosecuted as felonies into misdemeanors.
That does not mean every drug-possession case is a misdemeanor or that a possession charge should be treated as insignificant. The specific substance, applicable statute, prior convictions, and evidence surrounding the alleged possession all matter.
What Is Possession of a Controlled Substance?
California Health and Safety Code sections 11350 and 11377 prohibit unauthorized possession of various controlled substances.
Depending on the applicable statute, these laws can cover substances such as:
- Cocaine
- Heroin
- Methamphetamine
- Certain opioids
- Certain prescription medications when possessed without lawful authorization
- Other substances classified under California’s controlled-substance schedules
Marijuana is governed by a different legal framework following California’s legalization of adult recreational cannabis.
For information about cannabis possession, see our guide explaining when marijuana possession is legal in California.
What Does the Prosecution Have to Prove?
A simple drug-possession case involves more than merely finding a controlled substance somewhere near the defendant.
Generally, the prosecution must prove that:
- The defendant unlawfully possessed a controlled substance
- The defendant knew the substance was present
- The defendant knew of its nature or character as a controlled substance
- The substance was a controlled substance covered by the applicable law
- There was a usable amount of the substance
These requirements can create important factual issues in a possession case.
What Is a “Usable Amount” of a Controlled Substance?
California does not require prosecutors to prove that a defendant possessed a large quantity of drugs.
However, the substance generally must exist in a usable amount.
A usable amount is an amount sufficient to be used as a controlled substance. Useless traces or debris are not enough merely because laboratory testing can detect the presence of a drug.
At the same time, the amount does not have to be sufficient to produce an intoxicating effect.
Actual Possession vs. Constructive Possession
A person does not necessarily have to be holding a controlled substance to be accused of possessing it.
California recognizes both actual and constructive possession.
Actual possession can involve physically carrying or holding the substance.
Constructive possession can involve having control over the substance or the right to control it even though it is not physically on the person’s body.
This distinction frequently becomes important when drugs are found in places such as:
- A shared vehicle
- A house or apartment occupied by several people
- A hotel room
- A backpack, purse, or other container
- A garage or storage area
More than one person can potentially possess the same substance.
However, merely being near drugs does not necessarily establish knowing possession.
What If You Did Not Know the Drugs Were There?
Knowledge is an essential issue in a simple possession prosecution.
Suppose someone leaves a controlled substance in your vehicle, backpack, or home without your knowledge.
The fact that police later discover the substance in an area associated with you does not automatically establish that you knowingly possessed it.
The prosecution must prove the required knowledge rather than merely showing that the substance was physically nearby.
Evidence concerning who owned or controlled the location, who had access to it, statements made to police, fingerprints, electronic communications, and other circumstances can become relevant.
Do You Have to Know Exactly What Drug You Possessed?
The prosecution generally does not have to prove that a defendant knew the precise chemical identity of the controlled substance.
Instead, the relevant question is whether the defendant knew of the substance’s presence and knew of its nature or character as a controlled substance.
For example, a person generally cannot avoid a possession charge simply by claiming they believed one illegal controlled substance was a different illegal controlled substance.
However, genuinely not knowing that the substance was present or not knowing of its controlled nature can present a different issue.
Is Simple Drug Possession a Misdemeanor or a Felony in California?
Many California simple drug-possession offenses that were once felonies were reclassified as misdemeanors by Proposition 47.
That includes many offenses prosecuted under Health and Safety Code sections 11350 and 11377.
However, there are exceptions.
Certain defendants with specified serious or violent prior convictions or offenses requiring sex-offender registration can face different consequences.
Other circumstances can also lead to felony charges under different drug statutes.
The exact charge should therefore be determined from the applicable Health and Safety Code section rather than assuming that every possession offense is either automatically a misdemeanor or automatically a felony.
Simple Possession Is Different From Possession for Sale
One of the most important distinctions in a California drug case is whether prosecutors allege that the substance was possessed for personal use or for sale.
Simple possession and possession for sale are separate offenses.
Possession for sale can carry substantially more serious consequences and is generally prosecuted as a felony under the applicable California drug laws.
Prosecutors may attempt to establish intent to sell using evidence such as:
- The quantity of drugs
- Packaging
- Scales
- Large amounts of cash
- Text messages or other communications
- Transaction records
- Statements attributed to the defendant
- Other evidence allegedly associated with drug sales
Possessing a particular quantity does not necessarily prove intent to sell by itself. The surrounding evidence should be evaluated as a whole.
What About Prescription Drugs?
Controlled-substance laws can also apply to prescription medications.
Possession may be lawful when a controlled medication is possessed pursuant to a valid prescription or other lawful authorization.
Problems can arise when prescription controlled substances are obtained or possessed without lawful authorization.
Prescription-related cases can also involve separate allegations concerning forged prescriptions, fraud, sales, or obtaining medication through unlawful means.
The specific drug and circumstances under which it was obtained should therefore be examined carefully.
What If Police Found Drugs During a Search?
The prosecution’s ability to prove possession does not eliminate the requirement that law enforcement obtain evidence lawfully.
A drug-possession defense may involve examining:
- Why police stopped the defendant or vehicle
- Whether officers had legal grounds for a detention
- Whether a search warrant was valid
- Whether an exception to the warrant requirement applied
- Whether consent to search was actually given
- The scope of any consent
- Whether officers exceeded the lawful scope of a search
- Whether evidence was discovered as a result of an unlawful search or seizure
If evidence was obtained in violation of constitutional protections, there may be grounds to seek suppression of that evidence.
What Are Possible Defenses to Drug Possession?
The appropriate defense depends on the facts of the case.
Potential issues can include:
- Lack of knowledge: The defendant did not know the substance was present.
- Lack of knowing possession: The defendant did not exercise control or have the right to control the substance.
- Lawful authorization: The substance was legally possessed pursuant to a valid prescription or other authorization.
- No usable amount: The alleged substance consisted only of unusable residue or debris.
- Unlawful search or seizure: Police obtained the evidence in violation of the defendant’s constitutional rights.
- Identity or ownership issues: Evidence found in a shared location cannot necessarily be attributed to a particular person.
- Laboratory or evidentiary issues: The prosecution must establish that the substance is what it claims it is.
No single defense applies to every possession case.
Is Drug Diversion Available for a Possession Charge?
California law provides diversion opportunities for some defendants charged with qualifying drug offenses.
Eligibility depends on the offense, the defendant’s history, the facts of the case, and the particular diversion law or program involved.
When a defendant qualifies and successfully completes an applicable diversion program, the criminal charge may ultimately be dismissed.
Diversion law has changed significantly over time, so older descriptions of California’s former deferred-entry-of-judgment system should not be assumed to describe current law.
We will address California’s current drug-diversion rules in a separate guide.
Can an Old Felony Drug Possession Conviction Be Reduced?
Proposition 47 did more than change how many new simple-possession cases are prosecuted.
It also created procedures through which certain people with qualifying older felony drug-possession convictions may seek misdemeanor treatment.
Eligibility depends on the particular conviction and the person’s history.
Other forms of post-conviction relief may also be available depending on the circumstances.
For information about clearing or reducing an older California conviction, visit our Fresno expungement and post-conviction relief page.
Drug Possession vs. Drug Paraphernalia
Possession of drug paraphernalia is a separate issue from possession of the controlled substance itself.
The original version of this article treated controlled-substance possession as though it automatically included paraphernalia possession. They are better understood as separate potential offenses.
A person may face one charge, the other, or multiple charges depending on what police allegedly discovered and the circumstances surrounding the investigation.
Learn More About California Drug Charges
Drug cases can range from misdemeanor simple possession to felony allegations involving possession for sale, transportation, manufacturing, or other conduct.
For information about our representation in these cases, visit the Fresno Drug Crimes Attorney page.
If your case involves marijuana rather than another controlled substance, see our guide to California marijuana possession laws.
Talk to a Fresno Drug Crimes Attorney
If you have been accused of possessing a controlled substance in Fresno or elsewhere in Central California, the specific charge, alleged substance, circumstances of possession, and manner in which police obtained the evidence should be reviewed carefully.
Gregory W. Fox has more than 20 years of experience defending people accused of California drug crimes and other criminal offenses.
Call the Law Office of Gregory W. Fox at (559) 222-5800 to request a confidential consultation.