In Sonoma County, methamphetamine is by far the drug of choice. It’s the most common drug that we see coming through the court system but in recent years, we’ve seen a significant spike in the use of prescription painkillers and subsequently heroin. Now we’re seeing far more cases of possession of heroin than we ever had before although Methamphetamine still has a significant presence in the county.
Possession vs. Intent to Sell or Distribute Charge
The major difference between a simple possession charge and a charge of possession with intent to sell is just the intent. In order for the prosecution to prove or get you convicted of the crime of possession with intent to sell, they have to prove that you had the specific intent to possess this drug with the intention of selling it or distributing it or even giving it away.
In terms of punishment, the difference is vast. In order to prove the case of possession with intent, law enforcement and the prosecution will usually look for signs or indications that it was not possessed for personal use. Some of the common things they look for are how the drug was packaged, is this packaged in multiple separate baggies as opposed to one baggy that can point to possession with intent.
If there is other indicia of sale such as scales, ledges or sheets regarding evidence of sales, text messages regarding evidence of sales, clean packaging material that may demonstrate an intent to further package the material, it can all be used as evidence against the person that the drug possessed was intended for sale. A very small amount of drugs that is common for a user to possess is going to be charged as personal possession, anybody who possesses a larger amount of drugs even in one separate package could be looking at a possession with intent to sell just based on the amount of the drugs.
Penalties for Possession With Intent to Sell
In California, possession with the intent to sell is punishable by time in state prison. However, most people will be eligible now to serve that time in local jail or be granted probation. The punishment for possession to sell cocaine or heroin under 11351, which are the most common drugs in that classification, is punishable by 2, 3, or 4 years in local jail or state prison for some people. The punishment to transport or sell cocaine or heroin is punishable by 3, 4, or 5 years in local custody or state prison, if you don’t qualify for local custody.
The punishment for possession to sell methamphetamine, which we commonly see here in Sonoma County, is punishable by 16 months, 2 years, or 3 years in state prison. There are other drugs associated in that class as well but Methamphetamine is by far the most common one you see. The punishment for transportation or sales of methamphetamine is 2 years, 3 years, or 4 years in local custody or state prison if you don’t qualify for local custody.
Jail Time in a Drug Charge
In drug cases, in terms of sentencing, there’s a big difference in whether or not you’re charged with simple possession, possession with the intent to sell, or transportation. In California, if you have no prior history of drug possession on your first simple possession case, you’re eligible for a diversion under Penal Code section 1000 where you could enter a plea and then complete an outpatient treatment program, and at the end, you’d have your case dismissed.
Even if you’ve had multiple criminal cases or multiple drug possession cases, if you come into court and you’re charged with simple drug possession and nothing else, no other crimes associated with that particular arrest, you will be eligible to be sentenced to treatment under Penal Code section 1210, which was enacted several years ago under Proposition 36. Penal Code Section 1210 says that non-violent simple possession users cannot be sentenced to jail; they must be sentenced to probation and treatment.
In Sonoma County, the treatment option is typically a very limited outpatient treatment program that can include testing and can include supervision. If you successfully complete that outpatient treatment program, you will not go to jail. Furthermore, if you successfully complete the outpatient treatment program under Penal Code section 1210, at the end, you can come back to the court and petition to have your case dismissed to clear your record.
How Are Legal or Prescription Drug Cases Handled?
Sentencing is the same. If you possess, for instance, Vicodin or Oxycodone without prescription, that’s going to be punished the same as if you possessed heroin. That’ll be punished the same as if it was possessed for personal use or if it was possessed with the intent to sell; the punishment is going to be exactly the same as if it were a non-prescription drug such as heroin or cocaine.
Common Misconceptions About Drug Cases
Some people think that if they’re in possession of a prescription drug, their punishment would be less than if they possess a street drug such as heroin or cocaine. However, the punishment under the Health & Safety Code is exactly the same, there’s going to be no difference. If you possess a prescription drug and you don’t personally have a prescription, you’ll be punished and treated the same as if you possessed a street drug.
Some people think that if they used to have a prescription, they can still somehow possess prescription drugs and be immune from punishment, but the prosecution and law enforcement will come after you if you possess any type of prescription drug without a current and valid prescription.
Another common misconception in California is since we have relaxed our drug laws as to simple possession, is that those relaxed laws apply to all drug cases. However, if you are charged or convicted of possession with the intent to sell, selling drugs or transportation of drugs, you will not qualify for any diversion program or any relief under Penal Code Section 1210 and possession for sale is still treated as a strict felony case punishable by years in county jail or state prison. You cannot get diversion for possession with the intent to sell even if it’s your first offense.
If you’re arrested for any type of drug charge and you believe that you may have a problem with drugs, the best thing to do for your own health and for your legal case is to seek treatment right away. If you can’t afford residential treatment, you can always go to meetings such as NA or AA which are available in every town and all sorts of hours and that’s a good start to any attempt to getting clean and sober.
There are also many resources in the county that will help people looking to get off drugs and when judges and DA see that people are making a sincere effort to take care of their drug problem that can absolutely help your case in the long run.
Oftentimes, in drug related cases, whether it’s drug possession or other criminal cases that are caused by drug use, people can be sentenced to residential treatment and anybody that can get themselves into residential treatment beforehand may be able to avoid going into jail if they’re able to fix their drug problem.
Common Mistakes in a Drug Case
One of the big mistakes we see is people consenting to searches when they don’t necessarily have to. If you’re pulled over for a basic traffic offense, it’s very rare that the officer would have probable cause to search your whole vehicle and find drugs unless you gave that officer permission. Similarly, many drugs are found under consensual searches if people are stopped walking down the street or as passengers in the car.
If you don’t assert your 4th amendment rights and allow the police to search you and they find illegal drugs or other contraband, there is very little that you can do about that to get it suppressed.
The other big thing that can make a more solid sales case, that is more common now, are text messages in people’s phones that provide evidence of drug sales to law enforcement. Even though the Supreme Court has ruled that law enforcement needs to get a search warrant to go into your phone, they can still, upon arrest, seize your phone, keep it, apply for a search warrant and later go into your entire phone download all the contents and look for text messages, emails, phone calls, photos or any other type of material that can link to evidence of drug sales.
Police do use informants to help them crack bigger cases, and it’s not unusual for somebody when they are arrested with drugs to be approached by law enforcement and told that they will not report the arrest to the prosecution if they help them out by giving them tips for drug dealers or people who possess larger amounts of drugs.
Similarly, even if people are arrested and charged and come into the custody on the drug related offense, sometimes if they have information that is valuable to law enforcement, they may be able to mitigate their case or even get it completely dismissed if the information they can provide to law enforcement is valuable enough for the case.
Contact Amy Chapman
For more information on Common Types of Drug Cases, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling Amy Chapman at (707) 636-3207 today or filling out the form to the right.