Possession For Sale of a Controlled Substance Defenses - Health and Safety Code Section 11351
Motion to Suppress Evidence-Penal Code Section 1538.5
There are several ways to successfully defend a prosecution for an alleged violation of Health and Safety Code 11351. One of these ways is for your lawyer to file a motion to suppress evidence pursuant to Penal Code section 1538.5.
A defendant can file a motion to suppress evidence whenever it is believed that evidence was taken from your person or property unlawfully. The general theory behind a motion to suppress is that the prosecution should not benefit from evidence that law enforcement took from you illegally. There are many legal grounds for bringing a successful motion to suppress evidence motion. If your motion to suppress evidence is successful then this means that the illegally seized evidence will not be able to be used against you in court. This normally results in the criminal charges against you being dismissed
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 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 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.
No Intent to Sell
The defendant cannot be charged with possession for sales if the defendant did not sell or have the intent to sell. Selling, for the purposes of California Health and Safety Code Section 11351, means to exchange a controlled substance for money, services, or anything of value. Note that being in possession of a controlled substance without the intent to sell is still a crime under California Health and Safety Code Section 11350.
