Pursuant to California Health and Safety Code §11350(a) it is a punishable offense to possess a controlled substance unless you are also in possession of a valid prescription for that substance. The conduct required to form a sufficient basis for the crim of drug possession, is actual possession of an illegal controlled substance. According to California, as well as virtually every other state, an illegal controlled substance is a chemical or drug, whose possession, use, and manufacture are regulated by the federal statutes commonly known as the “Controlled Substances Act.”

The “Controlled Substances Act” sets forth an extensive list of substances, which are considered controlled substances as it relates to prosecution for the crime of drug possession. These substances regulated in the Act include, but are not limited to:

  • Opiates and opiate derivatives
  • Codeine
  • Heroin
  • Vicodin
  • Oxycontin
  • Peyote
  • LSD; and
  • Cocaine

For convenience’s sake, marijuana will not be included in this section, you can find information about possession of marijuana, read our section on possession of marijuana.

California Health and Safety Code §11350(a) broadly establishes possession of a controlled substance as a crime. It should be clarified that the definition of possession is to have constructive control over the substance at issue. That means that so long as you have the opportunity to exert control over the substance, you could be convicted of the crime of drug possession. For instance, even if you do not have the substance with you, but keep it in your house, car, office, etc., you could still be convicted for this crime.


Tom has heroin in his La Jolla mansion, but primarily resides in New Orleans, Louisiana. Tom could be convicted for drug possession, even though he lives across the country, as long as he has a right to control the heroin, and is aware that heroin is present in his La Jolla mansion.

To be convicted for the crime of drug possession, the Prosecution must prove four (4) elements beyond a reasonable doubt. These elements are:

  1. You exercised control over the substance;
  2. You had knowledge about the substance;
  3. You knew the nature of the drug; and
  4. You had a sufficient quantity of the drug, to be used as a controlled substance.

A detailed analysis of each of those elements will follow below. Each and every element of the charge must be proven beyond a reasonable doubt; otherwise you will not be convicted of drug possession. Orange County Criminal Attorney has extensive experience defending criminal charges, including drug possession. Our comprehensive understanding of the law will enable us to provide the best possible arguments in your defense, and ultimate obtain an acquittal. If we are unable to defeat the charges against you OCCA attorneys will advocate for the least punishment available.

What Is Control And Possession?

The first element the Prosecution must prove beyond a reasonable doubt is that you had “possession” of the illegal controlled substance. “Possession”, in turn, can be defined as actual, constructive, or joint possession. Actual possession requires that you have immediate, and direct, physical control over the illegal substance. For example, if you have drugs in your backpack or pocket. If a police officer finds illegal substances on your person, this will essentially seal your fate as it relates to this element of the crime. Should that occur, the skilled attorneys at OCCA will fight to exclude that evidence against, ultimately destroying the Prosecution’s case against you. Alternatively, constructive possession occurs when you have control over the location that the illegal substance is discovered. As noted above, constructive possession alone is sufficient to meet the “possession” requirement of this crime. It is irrelevant that you are not near the drug itself. Finally, joint possession occurs when you and at least one other individual have either actual or constructive possession of an illegal substance.

How Does The Court Determine If I Had Knowledge Of The Drug?

The second element that must be proven by the Prosecution, beyond a reasonable doubt, is that you knew the illegal substance was present, and you knew that the substance itself was an illegal substance. This means that if you were unaware that the drug was present, you cannot be convicted for drug possession. Further, if you are not aware that the substance is an illegal drug, you cannot be convicted of drug possession. For example, if you give a high-school friend a ride to the airport, and he forgot a box containing narcotics in your car without your knowledge, you cannot be convicted of drug possession because you didn’t know the drugs were there.

How Does The Court Determine If There Was A Sufficient Quantity Of The Drug To Be Used As A Controlled Substance?

The final element the Prosecution must prove beyond a reasonable doubt is that you had enough of the illegal substance to actually use it as a controlled substance. Thus, if you don’t have enough of the substance to use, you can’t be convicted of drug possession.

The criminal attorneys at Orange County Criminal Attorney are trained extensively in the laws applicable to drug charges. Most drug crimes carry stiff penalties. Having competent attorneys on your side will build a strong case in your defense, negating the elements the Prosecution must prove. Alternatively, skilled counsel may be able to enroll you in one of California’s many diversion programs. Finally, in the event that you are convicted, OCCA attorneys will fight to reduce the penalties against you. Our guarantee to you, is that with an OCCA attorney by your side, you will receive the very best representation available.

What Are The Consequences Of A Drug Possession Conviction?

Having control of a controlled substance in a large enough quantity yo actually use, is the simple drug possession definition. The attorneys at Orange County Criminal Attorney are extensively trained in all phases of drug possession charges in California.

There are a variety of punishments associated with being arrested, charged, or convicted of a drug possession crime. The Prosecutor can approach a drug possession case in a number ways. Some Prosecutors are much stricter than other Prosecutors. The sentences for drug possession can include any combination of the following:

  • Jail time
  • Fines
  • Revocation of your driver’s license
  • Probation

Most jurisdictions have stiffer penalties each subsequent time you are arrested. The more charges on your criminal record, the more severe the penalties.

Every drug possession case presents a unique set of facts. These facts will be described during the presentation of your case. If the Prosecution is seeking to prove that you possessed the illegal substance for the purpose selling it, you could face much more severe penalties. In a simple possession case, the judge will take into account all facts surrounding your arrest when determining the penalties to impose on you.

A conviction for possession of drugs can have a profound impact on your life. Long after your case is over, your conviction for drug possession will remain on your criminal background. If you are a student, a conviction for drug possession will prohibit you from receiving federal student loans; effectively barring you from attending school.

What Are The Penalties For Being Convicted Of Drug Possession?

The crime of drug possession is generally a misdemeanor, which is punishable by up to 6 months in jail, a fine of up to $1,000, or a combination of both.

Drug possession becomes a felony if you have a prior conviction for a felony such a murder, sex crime against a child under 14, sexual battery gross vehicular manslaughter while intoxicated, or a conviction that causes you to be on the sex offender registry.

Depending on the facts of the case, a felony conviction for drug possession will result in higher penalties. If you have been convicted of felony drug possession crime you can face jail time ranging from two (2) to four (4) years, a fine of up to $10,000, or a combination of both.

What Legal Defenses Can My OCCA Attorney Present To Defend A Drug Possession Charge Against Me?

As mentioned above, drug possession is usually a misdemeanor offense in California. A conviction for this will remain on your criminal record, and will show up on subsequent background checks. As mentioned above, you will no longer be eligible for federal student loans if you are a student, and your job prospects will suffer a negative impact. Having competent counsel from Orange County Criminal Attorney can result in multiple possible outcomes: (1) the charges are never brought against you, (2) the Prosecution may not be able to prove their case beyond a reasonable doubt, (3) you may be given the opportunity to participate in one of California’s many drug diversion programs, or (4) lesser sentencing based on effective advocacy in your defense.

There are many routes an OCCA attorney can pursue to defend you in a drug possession charge against you:

Sometimes, you are arrested while in possession of a substance, without having the prescription on you. If you have a valid prescription, an OCCA attorney can present that to the Prosecutor, and the charges will likely be dropped against you.

This could occur if the drug they are charging you with constructive possession of, was in a location where you had absolutely no control over.

A substantial defense an OCCA attorney can raise is that you didn’t know that the drugs were present, or that you didn’t know the substance was a drug. This defense requires a jury to believe that you did not know. This is where competent counsel is essential in presenting a persuasive argument to the jury.