Possession of a Controlled Substance Defenses - Health and Safety Code Section 11350
Momentary Possession
Possession is not illegal if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that:
- The defendant possessed the controlled substance only for a momentary or transitory period;
- The defendant possessed the controlled substance in order to abandon, dispose of, or destroy it; AND
- The defendant did not intend to prevent law enforcement officials from obtaining the controlled substance.
The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the three listed items is true.
No Control Over Illegal Substance
The defendant cannot be charged with possession of a controlled substance in California if the defendant did not have control over the illegal substance.
However, the prosecution can satisfy this burden by proving that the substances were in a vehicle or home that belongs to you. Even if you did not personally buy the substances, or were not using the substances, the prosecution can still charge you with felony possession.
Agreeing to buy the controlled substance does not, by itself, mean that a person has control over the substance.
Awareness or Knowledge of Controlled Substance
The defendant cannot be charged with possession of a controlled substance if the defendant was not aware of the substance's presence and that it was a controlled substance.
