California Possession for Sale of Marijuana Defense Lawyers
Possession for Sale of Marijuana Defenses – California Health and Safety Code Section 11359
Motion to Suppress Evidence-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
Marijuana 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 found guilty for possession for sale of marijuana if the defendant did not have control over the illegal substance.
Agreeing to buy marijuana does not, by itself, mean that a person has control over the substance.
Awareness or Knowledge of Controlled Substance
The defendant cannot be found guilty of possession for sale of marijuana if the defendant was not aware of the substance’s presence and that it was in fact marijuana.
No intent to Sell
The defendant cannot be found guilty with possession for sale of marijuana if the defendant did not have intent to sell the controlled substance. However, the defendant may still face other charges. See Possession of Marijuana – California Health and Safety Code Section 11357.
