Defenses to Possession of a Controlled Substance Charges – 11350(a) H&S

When charged with a serious crime such as possession of a controlled substance, you need an experienced criminal defense attorney that will fight for you using an effective defense strategy. There are several defenses available that could result in a dismissal or reduction of your charge. Here are some successful defenses that our lawyers at Wallin & Klarich can raise on your behalf:


Lack of control or possession under 11350 H&S

possession of a Controlled Substance - 11350(a) H&S

Have you been charged with possession of a controlled substance under 11350(a) H&S?

In order to convict you of possession of a controlled substance, the prosecution must prove that you had possession or control over the drug. Possession can be “actual” meaning the substance was found on your person, or it can be “constructive” meaning that the substance was found in an area over which you exercise control. Your attorney can argue that you did not have the requisite possession or control of the drug in order to sustain a conviction against you.

It is important to know that either having access to the drugs or being near them at the time they are found, alone, are insufficient to prove possession. For example: The cops raid your friend’s home while you are watching the game together at his house and find bags of cocaine stashed beneath the couch cushions. Although you were sitting on the couch and had a physical presence in the area in which the cocaine was found, you did not have possession or control over the drugs and cannot be convicted of possession of a controlled substance.


Momentary Possession

Momentary possession of a controlled substance for an otherwise lawful purpose may be a defense to a possession of a controlled substance charge under 11350 H&S. In order to assert this defense you must prove:

  1. You possessed the controlled substance for only a momentary or transitory period;  AND
  2. You possessed the controlled substance in order to abandon, dispose of, or destroy; it  AND
  3. You did not intend to prevent law enforcement officials from obtaining the controlled substance.

In order to be successful in asserting this defense, YOU must prove each of these elements by a preponderance of the evidence. This means that you must prove that it is more likely than not that each of the three listed items is true. This is a lesser burden of proof than beyond a reasonable doubt.


Lack of knowledge

The prosecution must prove that you knew of the nature or character of the drug as a controlled substance. If you had no knowledge of the presence of the drug in your possession or you thought that it was something else entirely and not a controlled substance, you cannot be convicted under 11350 H&S. Your attorney can argue that you lacked the requisite knowledge of the nature, character, or presence of the drug and therefore cannot be found guilty of possession.

For example: You borrow your friend’s car for the weekend and are pulled over for speeding. You consent to a search of the car and the police find a large quantity of methamphetamine stored beneath the back seat. Although it is possible to show that you had constructive possession since you had control over the vehicle in which the drug is found, you cannot be convicted of possession of a controlled substance if you had no knowledge that the drug was even present in the vehicle when you borrowed it.


Valid prescription

If you have a valid, written prescription from a physician, dentist, podiatrist, or veterinarian licensed to practice in California, you cannot be convicted of possession of a controlled substance. The burden of proving that you did not have a valid prescription rests on the prosecution and they must prove this element beyond a reasonable doubt. If you have a condition that is treated with a controlled substance, your attorney can argue that you had a valid prescription and therefore your possession of the substance was not illegal.


Failure to follow police procedures

The Fourth Amendment to the United States Constitution grants you a constitutional right to be free from unreasonable searches and seizures by the government. To protect this right, the United States Supreme Court has issued a long line of decisions requiring the police to comply with certain formalities and procedures when conducting traffic stops and arrests. These formalities include possessing sufficient “probable cause” to make an arrest, reading you your Miranda rights before a police interrogation, and searching the vehicle only for evidence of the crime for which you were arrested. If the police illegally obtained evidence by failing to follow any one of these constitutional guarantees, your defense attorney can ask the judge to have that evidence excluded and the chances of winning your case will increase significantly.


Call the drug possession defense attorneys at Wallin & Klarich today

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Contact the experienced attorneys at Wallin & Klarich today if you have been charged with 11350(a) H&S

If you are looking for California drug possession defense lawyer to represent you, Wallin & Klarich can help.

With over 30 years of experience and offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, Victorville and West Covina, our highly skilled and professional defense attorneys will conduct a thorough investigation of the facts and passionately argue that your case should be dismissed.

Call us today at (877) 4-NO-JAIL or (877) 466-5245. We will be there when you call.

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