Possession of Methamphetamine Defenses – Health and Safety Code Section 11377

Momentary Possession

Possession is not illegal if the defendant can prove momentary possession. In order to establish this defense, the defendant must prove that:

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

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 Methamphetamine

The defendant cannot be charged with possession of methamphetamine in California if the defendant did not have control over the illegal substance.

Agreeing to buy methamphetamine does not, by itself, mean that a person has control over the substance.

Awareness or Knowledge of Methamphetamine

The defendant cannot be charged with possession of methamphetamine if the defendant was not aware of the substance’s presence and that it was a controlled substance.