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Possession of a Controlled Substance Overview – Health and Safety Code Section 11350
The attorneys at Wallin & Klarich have over 30 years of experience handling controlled substances cases in Southern California. Our attorneys have the skill and expertise to provide you with the best possible defense in your case.
Section 11350 of the California Health and Safety Code is a law that makes it unlawful to possess a variety of drugs. While the language of Section 11350 is somewhat complicated, once you understand the law, you will find that there are often many good defenses to this crime.
Many people are unaware that possession of a medically prescribed drug is illegal unless the prescription is available and current (Health & Safety Code §11350(a)(2)). The punishment for prescription drug possession could be just as severe as that for cocaine or methamphetamine.
The attorneys at Wallin & Klarich will use their knowledge of the law to provide you with the best possible drug crime defense. When you are accused of a violation of Health and Safety Code Section 11350, the judge has the power to grant you probation instead of sentencing you to jail. (Health and Safety Code §11350(d)). The judge also has the discretion to order community service instead of jail time (§11350(d)). Wallin & Klarich attorneys will aggressively defend you to ensure the judge takes into account all of the available options in your case. In some drug possession cases we are able to have all the charges dismissed for our clients. Contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at 1-888-280-6839 or visit www.wklaw.com for more valuable information.
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Possession of a Controlled Substance Prosecution – Health and Safety Code Section 11350
Section 11350 lists the specific controlled substances that are illegal to possess. Possession means that a person has physical custody and control over the substance. 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 drug possession.
The prosecution must prove that you had control over a usable amount of a drug listed in Section 11350 of the Health and Safety Code. A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.
The prosecution does not need to prove that the defendant knew which specific controlled substance he or she possessed, only that he or she was aware of the substance’s presence and that it was a controlled substance.
If the prosecution can prove that you had physical custody or control, whether intentional or not, over any of the substances that make up the illegal substances, then you could be found guilty of this offense.
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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.
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Penalty and Punishment for Possession of a Controlled Substance – Health and Safety Code Section 11350
Unless you have a written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in California, if you possess any of the drugs or derivatives listed in Health and Safety Code Section 11350(a), you can be sentenced to up to three years in state prison. However, even though the court has the legal power to sentence to you to a state prison sentence that does not mean that you will be sentenced to state prison. The court also has the power to place you on probation. If you are placed on probation the court may impose from one day to one year in the county jail as a condition of probation.
If you are placed on California felony probation for this offense, this means you likely will have a probation officer. You will have to report to the probation officer on a regular basis. You also may be ordered to “test” regularly so the probation officer can be certain you are not using illegal drugs. In addition, you likely have to give up your “search and seizure rights” during the period of your probation. This means that any member of law enforcement who knows you are on felony probation can search your person or property or home without the need for a search warrant.
In addition, if you are placed on felony probation this means that if your probation officer believes you have violated any of the terms of your probation he can arrest you without a warrant. In most cases if this happens you will sit in jail without bail until the judge decides whether you in fact did violate your probation. If the judge finds you did violate your probation, you can then be sent to state prison.
In addition to the above punishments, Health and Safety Code Section 11350(d) allows the judge to grant probation; however, the judge can still impose the following conditions of probation:
- For a first offense under Section 11350, a fine of at least one thousand dollars ($1,000) or community service.
- For a second or subsequent offense under Section 11350, a fine of at least two thousand dollars ($2,000) or community service.
- If a defendant does not have the ability to pay the minimum fines specified in (1) and (2), community service shall be ordered in lieu of the fine.
For all of the above reasons, it is critical that you retain an experienced drug crimes defense attorney to represent you when you are first accused of this or any drug offense. The experienced attorneys at Wallin & Klarich can provide you with the best possible defense in your drug case. Call us now for free information so we can begin to help you.
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Possession of a Controlled Substance FAQs – Health and Safety Code Section 11350
- I can only be charged with possession of a controlled substance if I am caught under the influence, using, or selling the drug, right?
- If I am charged with possession of a controlled substance, is there any way I can avoid jail?
- If I am caught with prescription medication, can I still be charged with possession of a controlled substance?
- If the drugs were found in my car, can I still be charged with possession even though it wasn’t on me?
No. The mere fact that that the substance was in your possession is sufficient to be charged under California Health and Safety Code Section 11350.
Yes. People charged with California Health and Safety Code Section 11350 can be eligible for diversion programs under California Penal Code Section 1000 or Proposition 36. These programs give defendants the opportunity to receive treatment rather than go to jail. If you qualify for California Penal Code Section 1000, judgment against you will be deferred for a period of time so that you can complete a drug rehabilitation program – a successful completion of the program, along with a period of good behavior, will result in a dismissal of the case. Proposition 36 functions in a similar way in that the judge will place you on probation during which you will have to complete a drug rehabilitation program in order to have your case dismissed.
Yes. Along with narcotics such as crack, cocaine, heroine, ecstasy, and ketamine, prescription drugs (e.g., Vicodin and Codeine) that are not lawfully prescribed may also incur a charge for possession.
Yes. For the purposes of this crime, a person does not have to be holding or touching the drug to be in possession; all that is needed is for the person to have had control over it, or the right to control it. Since it is likely that you have control over the things that are found in your car, you may be held to possess any drugs recovered from it.
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Testimonials
Drug Cases
I was charged with Driving under the influence of drugs by the Ventura County District Attorney’s Office. I believed I was innocent of the charges and wanted to fight my case even if I had to risk jail time. Originally, I hired another law firm but they tried to convince to plead guilty even though I thought I was innocent.
So, I sought the services of the experienced criminal defense law firm of Wallin and Klarich and met with Rene Munoz who reviewed my case and told me I had a good case. He saw that the CHP officer made several inconsistent statements in the police report and various other mistakes. Wallin and Klarich’s brilliant associate Rene Munoz told me that to obtain the best possible result you have to hire a law firm that has the guts to “not back down” and to fight for their clients. In fact Mr. Munoz refused to back down and we demanded a trial. Wallin and Klarich never stopped fighting and my case was dismissed when Wallin and Klarich pushed my case to the eve of trial. Mr. Munoz helped preserve my reputation and career because of his willingness to take on the prosecutor.
If you want a law firm that is really willing to fight for you to obtain the best possible result possible in your case I would strongly recommend you calling Wallin and Klarich. I am sure glad I did.
-Confidential Client
Attorney Matt Wallin, a simple thank you can’t possibly express how much I appreciated your hard work, professionalism and unwavering dedication to my case. I was accused of felony drug possession and driving while on a suspended license. I knew the district attorney was pushing for 3 years state prison because of the seriousness of the offenses and my prior criminal record. You first explained to me my rights and protections under the constitution, particularly the Fourth Amendment and how these rights applied to my case. The motion to suppress evidence you drafted was powerful and well-written. The judge and district attorney must have agreed because BOTH CHARGES WERE DISMISSED. Words cannot express the appreciation and relief I felt being able to walk freely out of the courthouse with my Mom and kids. This is all thanks to Attorney Matt Wallin’s dedication and understanding of the law. I would highly recommend the legal services of Attorney Matt Wallin to anyone who wants an attorney there every step of the way, fighting to protect their rights and freedom.
-RJ
My son was charged with two felonies, (1) felony weapon charge (possession of an assault weapon) and (2) felony drug charge (possession for sale). Based on the severity of the charges and my son’s extensive criminal record, it appeared an extended state prison sentence was inevitable. My son was facing up to 6 years in state prison.
I learned that the Southern California criminal defense firm of Wallin and Klarich is known for outstanding representation of clients charged with serious felonies.
The prosecutor, with support from the Weapons, Narcotics, and Anti-Gang Unit, aggressively pursued the charges against my son. My Wallin and Klarich attorney immediately jumped into action and developed a strategy for defending my son on both charges. Wallin and Klarich conducted extensive research on assault weapons, consulted with weapon and drug experts, and thoroughly investigated each and every legal avenue in our defense.
After a tremendous amount of work and diligent representation Wallin and Klarich did the impossible for my son. Not only did he keep my son out of prison, he aggressively negotiated a DISMISSAL of all charges. The felony assault weapon charge was dismissed outright, before the preliminary hearing. Just as remarkable, the felony drug charge will be dismissed when my son completes drug treatment under Proposition 36.
The relief and weight lifted off our shoulders was overwhelming. We have Wallin and Klarich to thank for this. I would highly recommend the criminal defense firm of Wallin and Klarich to anyone who needs personal attention, diligent representation and outstanding results.
J. S.
When we needed a law firm to assist our daughter who was facing a serious drug offense we didn’t know where to turn. I wanted to take time to thank you Senior Attorney Paul Wallin, and all the staff at Wallin & Klarich Law Firm for your support and assistance during a difficult time affecting the Cast family. Good to know that the Cast family has a group of professionals available whose resources are dispensed in a timely manner. Thanks to all, this has been a successful mission; you have done an excellent job. Would highly recommend, utilize your services in the future.
-J.C.
I am writing to inform you of our experience with your Wallin & Klarich Attorney and to thank you for providing us with his outstanding legal representation for our son, S.H.E.
Last week, we were in the Bakersfield Superior Court in Bakersfield, CA for sentencing before Judge Stuart. The District Attorney in this case had advocated that SH be sent to jail for up to one year on felony drug charge. Your Wallin & Klarich Attorney had worked diligently for months, traveled back and forth to Ridgecrest, CA on many occasions to represent SH, and put together an outstanding sentencing memorandum for the judge’s review urging the judge to sentence SH to time served and probation. Additionally, every phone call we placed with our questions was always returned within 24 hours. Your Wallin & Klarich Attorney took time and patience in explaining the process and what we might expect.
What I want to pass on to you is Judge Stuart’s comment about your Wallin & Klarich Attorney’s presentation:
“In my 23 years sitting on the bench, this is the most concise, informative, and well documented sentencing memorandum I have ever seen. Than you, Wallin & Klarich Attorney.” With that the judge sentenced SH to time served and probation.
I believe that without your Wallin & Klarich Attorney’s attention to details and his expertise in this case, that SH would not have received a sentence of time served and probation. Additionally, after the sentencing hearing, the probation officer repeated three different times within a 20-minute period that we had witnessed a miracle. That miracle was due to your Wallin & Klarich Attorney’s excellent defense in this case.
Your Wallin & Klarich Attorneys representation of Wallin & Klarich exceeded our expectations and my hope is that you understand what an outstanding lawyer you have on your staff. We are grateful for all of his hard work and his commitment to SH. Paul Wallin promised me that Wallin & Klarich would provide the best, and your Wallin & Klarich Attorney ensured that Mr. Wallin’s promise was kept.
-K.G.
I want to thank you for your excellent representation in my probation violation matter. When I called your office for advice, I was facing almost guaranteed jail time on probation violations for my drug possession convection. When my attorney from Wallin & Klarich spoke on my behalf at the probation violation hearing it resulted in me being able to voluntary enter a drug treatment program rather than taken to jail. The judge actually said that if it had not been for my attorney and his arguments, I would have gone to jail that day. Thank you Wallin & Klarich for representing me, keeping me out of jail, and helping me to get my life back on track.
-S.W
I was accused of misdemeanor unauthorized possession of a syringe which contained Methamphetamine. Because of prior convictions, which caused me to go to State Prison, I was ineligible for the drug programs and I was looking at 90 days or more of jail. The attorneys of Wallin & Klarich moved aggressively and filed a motion to suppress evidence because they felt the search that led the police to find the syringe was illegal. On the day the matter was set for hearing on the motion, and after the district attorney had examined the arguments put forth by my attorney, they decided to dismiss the case if I paid $50.00 in costs without even going to a hearing! I am truly grateful for the attorneys of Wallin & Klarich. Without their expert advice and guidance I could have been incarcerated and placed on 3 years of probation. I would recommend them highly to anyone facing a similar situation or any criminal charge.
-J.H.
After being caught in an undercover sting operation, I was charged with four criminal counts, including, providing liquor to a minor; possession of alcohol while under 21; possession of open container while driving; and unlawful use of an identification card. At the time I was eighteen years old. While these charges normally mandate a driver’s license suspension and can involve jail time, my Wallin & Klarich attorney was able to get all charges dismissed after referring me into a short alcohol education class.
-C.S.
I was arrested and charged with various felony drug crimes and one count of disorderly conduct. I was facing a possible prison time. I hired Wallin & Klarich to assist me with my case. In Riverside Court, my attorney was able to negotiate with the district attorney and get the disorderly conduct charge and several drug charges dismissed. In addition, my attorney was able to get me into PC1000, a drug program, which enables me to keep this charge off my record if I successfully complete the program. I would recommend the services of Wallin & Klarich if you are in need of an experienced criminal defense attorney who knows the local courts.
-J.G.
I would like to tell you that I really appreciate the work my attorney did on my case. My wife had been haunted for years by a very serious crime in her past. She had been arrested for possession of a controlled substance for sale. It was my understanding that the minimum sentence for this charge would surly mean time in State Prison. Years had passed since the date of her arrest but nothing had been resolved and my wife was still facing punishment for a crime that she did not commit. my attorney was able to work with the prosecutors and reveal the weakness in their case against my wife. my attorney subsequently brought the motion in court and had the charges completely dismissed.
-J.A.
“I was arrested for one count of possession of methamphetamines while on probation; the maximum sentence was four years and a minimum sentence of two years eight months. The attorneys of Wallin & Klarich moved aggressively to present my case to the District Attorney and Judge. I received diversion, despite the fact that my priors made me ineligible, my case will be dismissed after 18 months. I am grateful to WK for their advice and guidance, I would recommend them highly to anyone facing a similar situation or any other criminal charge.”
-K. C.
“I was charged with three felonies, possession for sales, transportation and cultivation of marijuana. Due to the persistence of Wallin & Klarich, all charges were dismissed against me. I am grateful to Wallin & Klarich and would recommend them to anyone else who is faced with criminal charges.”
-M. S.
“I was facing state prison time for possession of methamphetamine because I had a prior strike. I hired Wallin & Klarich to take my case. My prior strike required the court to double my sentence, which would have meant years in state prison. The only way to avoid state prison was for my attorney to get the strike stricken for the purpose of sentencing. Fortunately for me, Wallin & Klarich has attorneys who specialize in each court. As a result, at each stage of the process I was being represented by the attorney most familiar with that court, the Judges and the District Attorneys. The attorneys at Wallin & Klarich filed the appropriate motions and made the necessary arguments to the court and in the end my prior crime was stricken. I received credit for time served and I was released the SHe day. Without the knowledge and hard work of Wallin & Klarich I would be in state prison. I enthusiastically recommend them to anyone in need of a criminal defense attorney.”
-S. J.
“San Bernardino County Sheriff’s Department responding to an anonymous tip of large amounts of drugs being sold, came to my father’s house. They indicated that they were there for a different reason and gained access to my house without consent. They then proceed to ask for consent to search once inside the residence. Consent was never given, despite what they write in their police report. The search revealed nothing. However, the officer kept searching. I was later arrested and handcuffed for allegedly being under the influence. A search of a trailer on the property revealed drugs. I hired an attorney and all he wanted to do was take a plea bargain. I fired him and I hired Wallin & Klarich to represent me. Wallin & Klarich argued with the District Attorney that no consent was ever given and therefore the cops violated my fourth amendment right. The District Attorney did not agree and Wallin & Klarich ran a 1538.5 motion to suppress in front of the Judge. The Judge agreed that the initial entry into the house was based on trickery and false information and thus if there was consent, it was NOT VALID. In addition, since I was placed under arrest, any consent given is not valid because it is not free and voluntary. The case was dismissed because Wallin & Klarich fought to protect my rights by running the motion.”
-L. C.
“The police arrested me for possession of 4 ounces of heroin on my person and other illegal drug violations. The District Attorney charged me with possession of heroin for the purpose of sale, transportation of heroin and possession for sale of Cocaine. The minimum I could serve for these charges was three years in state prison, as that was the lowest possible sentence on the transportation of heroin charge. My total exposure on all the charges was a maximum of 17 years in state prison. However, the law offices of Wallin & Klarich negotiated with the District Attorney and managed to get the transportation charge against me dismissed; they also caused the possession for sale charges to be amended to straight possession. Because of the representation given to me by Wallin & Klarich I was made eligible for a drug program and released from custody. My co-defendant, who was represented by the public defender, and who did not even have any drugs on him at the time of the arrest, went to state prison for three years. The District Attorney could have very easily prosecuted me for the alleged crimes and sent me to State Prison. I believe that the familiarity of the Wallin & Klarich attorneys have with each court and their aggressive representation resulted in the very favorable result in my case. Wallin & Klarich attorneys definitely know how to use the system to their client’s benefit and I would highly recommend them for representation in any criminal matter.”
-M. R.
“Several years ago I was convicted of felony possession of a deadly weapon and possession of meth. I completed my probation but still had the felony conviction on my record. I hired Wallin & Klarich to help me. Wallin & Klarich filed a motion to reduce the felony to a misdemeanor and a motion to have the misdemeanors expunged. Both motions were granted. I can now get on with my life and put the felony conviction behind me.”
-A. C.
“I had two warrants for me from nearly 3 years ago. I failed to go through with my drug programs because of numerous personal reasons. I talked to other attorneys and they told me that I was looking at six months of jail time. Then, I came in and talked to Wallin & Klarich. they told me the hard facts, I was facing a judge that would most likely give me a good chunk of jail time. My attorney must have been awesome in court. I was reinstated in my program and received no jail time. Thank you Wallin & Klarich.”
-J. B.
“I am writing this to thank you for all you’ve done to help me. I was charged with possession for sale. But to make matters worse, I had a prior conviction of the SHe offense. My old lawyer just kept asking for more money and the best he could do is 4 years state prison. Even though I had a serious felony prior, you were able to get me to qualify for the Early Disposition Program. At the hearing, you were able to show the prosecutors that this case actually merits half of what they were asking for. Thanks to you I have 2 more years added to my life. My sentence was only for 2 years. Thanks.”
-J. D.
“Wallin & Klarich are the best. I was facing two serious felony possession charges and I received a treatment program and no prison time. Because of their efforts I have been given the chance to turn my life around. Thank you Wallin & Klarich with all my heart.”
-B. M.
“I was facing three serious drug charges out of Whittier. Aggravating my situation was that I had previously been given diversion on an earlier case. I was facing a full year in county jail. Wallin & Klarich was able to work out a deal to get me into another diversion program that allowed me to keep the great job that I have. Thanks.”
-E. H.
“My job was on the line. I work as a truck driver. Any jail time could have cost me my job. I was arrested for being under the influence of narcotics. It was my second case. My attorney was able to resolve the case with no jail. I am very pleased with my results Wallin & Klarich got me. They kept me out of jail and saved my job.”
-C.L.
“Wow! What a result! On April 5, 2000 I was arrested for possession of a controlled substance and a second time DUI. I was looking at the possibility that I might have to register as a narcotics offender, serve jail time, do a lengthy 18-month alcohol program, install a breathalyzer device in my car that might get impounded. However, because I had a good lawyer from Wallin & Klarich, I was able to get my drug case thrown out and my prior DUI stricken thus avoiding any jail whatsoever! I am pleased with Wallin & Klarich for keeping me out of jail. You guys are fantastic!”
-S. L.
“I am writing this letter regarding an Attorney of Wallin & Klarich who represented me on my case February 27, 2001. I retained Wallin & Klarich in December 2000. My case was a possession charge that I received in 1988. The bail was set at $50,000.00. Attorney of Wallin & Klarich assured me that I had a good chance of getting it dismissed. My attorney instructed me to write him a summary of what I had been doing over the 12-years period and I did so. He also instructed me to have a bail bondsman present just in case, which I also did. We went to court and my attorney got my case dismissed.
I would just like to let you know that I am very pleased with the way Attorney of Wallin & Klarich handled the whole situation. He was very professional, courtcous, condident and comforting. I don’t intend to need your services anymore but I would recommend Wallin & Klarich to anyone whom needs a good attorney and I assure you that I will do that.”
-C. K.
“My child was facing jail time even after completing over 15 months of drug rehabilitation classes. We were not trying to avoid punishment, but simply letting my child do the time in a safe environment such as home or a charitable organization. The only way to avoid incarceration was to convince the Court that jail time would be unfair and severe considering the effort my child had gone through to improve. Going into jail for an extended period would only regress the progress that my child achieved through therapy. Unfortunately for me, the Court would not even talk to me unless a District Attorney was involved in the process. Frankly, the District Attorney’s Office had no consideration for my child’s improvement and complete reversal of lifestyle. They were not willing to listen. They made me feel like my child was just another conviction statistic and they showed us no mercy.
Fortunately, Wallin & Klarich took my child’s case at a moments notice. My attorney showed us compassion and understanding. He treated us with respect and dignity. He passionately made our argument to the court. After being refuted several times by the uncompromising District Attorney’s Office, my attorney did not back down. He zealously argued our case to the Court. Even when we felt that nothing else could be done, my attorney had a positive attitude and gave us hope.
As a result, at each stage of the process of negotiation I was being represented by an attorney that was professional and experienced with court procedure and negotiation tactics. The Judge was compelled by my attorney’s arguments and granted my child leave to complete her punishment under home supervision. My attorney made the necessary arguments to the court when it counted most. If not for him, my child would be in the harsh environment of jail. I enthusiastically recommend the attorneys at Wallin & Klarich to anyone in need of a criminal defense attorney.”
R.L.
More California Drug Crime Information
- Drug Crimes: What You Need to Know
- California Drug Diversion – Penal Code 1000
- California Drug Diversion – Proposition 36
- Possession of Drug Paraphernalia Overview
- Possession of Drug Paraphernalia Prosecution
- Possession of Drug Paraphernalia Defenses
- Possession of Drug Paraphernalia Sentencing
- Possession of Drug Paraphernalia FAQ’s
- Possession of a Controlled Substance Overview
- Possession of a Controlled Substance Prosecution
- Possession of a Controlled Substance Defenses
- Possession of a Controlled Substance Sentencing
- Possession of a Controlled Substance For Sale Overview
- Possession of a Controlled Substance For Sale Prosecution
- Possession of a Controlled Substance For Sale Defenses
- Possession of a Controlled Substance For Sale Sentencing
- Possession of Marijuana Overview
- Possession of Marijuana Prosecution
- Possession of Marijuana Defenses
- Possession of Marijuana Sentencing
- Possession for Sale of Marijuana Overview
- Possession for Sale of Marijuana Prosecution
- Possession for Sale of Marijuana Defenses
- Possession for Sale of Marijuana Sentencing
- Possession of Methamphetamine Overview
- Possession of Methamphetamine Prosecution
- Possession of Methamphetamine Defenses
- Possession of Methamphetamine Sentencing
- Possession of Methamphetamine FAQ’s
- Sale of Marijuana Overview
- Sale of Marijuana Prosecution
- Sale of Marijuana Defenses
- Sale of Marijuana Sentencing
- Transportation & Sale of a Controlled Substance Overview
- Transportation & Sale of a Controlled Substance Prosecution
- Transportation & Sale of a Controlled Substance Defenses
- Transportation & Sale of a Controlled Substance Sentencing















