California Possession of Marijuana for Sale – 11359 HS
Possession of Marijuana for Sale – Frequently Asked Questions
A knowledgeable drug crime lawyer at Wallin & Klarich shares some common questions we have received regarding possession of marijuana for sale and marijuana trafficking laws under California Health and Safety Code 11359.
How will the prosecution try to prove that I had marijuana in my possession?
To prove that the substance in question is marijuana, the prosecution can have independent lab tests performed and present the results in trial. The prosecution can also have an expert witness testify that the substance in question is marijuana.
To prove that the marijuana was in your actual or constructive possession, the prosecution only needs to prove that you had physical custody or control over the marijuana. The easiest way for the prosecution to prove actual possession is when the marijuana is found on your person by a law enforcement officer. However, you do not have to actually be holding or touching the marijuana in order to possess it. It is enough if you have control over the area in which it is found. The prosecution can show this by proving that the marijuana was in your vehicle, home or any other location in which you have control.
Is it possible to be charged with possession of marijuana in addition to 11359 HS?
You can be charged with both crimes if the prosecution feels they can prove that a portion of the marijuana was for personal use and another portion of the marijuana was for sale. It is not uncommon for people to be charged with both crimes. The prosecution will still have to prove the elements of both crimes to convict you of possession and possession for sale. Please read our Possession of marijuana section for more information.
I had marijuana on me, but it was for personal use. Can I be charged with possession for sale?
Unfortunately, it is possible to be charged with possession of marijuana for sale even if you possessed it for your own personal use. The prosecution may choose to charge you with possession of marijuana for sale if they feel there are facts to indicate that you had the intent to sell. When making this decision, the prosecution can consider the amount of marijuana seized, whether packaging materials such as small baggies or containers were present, if large sums of cash were present, or whether drug paraphernalia such as a pipe was found. For example, if a large amount of individually packaged marijuana was seized, the prosecution is likely to find the intent to sell.
Is it possible to argue that I only had “momentary possession” of marijuana?
Yes. Having only momentary possession is a defense to the charge of possession of marijuana for sale. You must prove that the possession of marijuana was only for a momentary period, you possessed the marijuana for the purposes of disposing it, and you were not trying to prevent law enforcement from obtaining the marijuana.
You must prove each of these elements by a preponderance of the evidence. This means you have to prove that each of the three listed items were more likely than not to be true.
Can an attorney help reduce my possession of marijuana for sale charge to a lesser offense?
Having an experienced drug defense attorney can help you get a lesser charge. The attorney can negotiate with the prosecution and highlight any weaknesses in their case. The prosecution may fear losing in trial and offer a lesser charge. In most possession for sale cases, the lesser charge would be possession of marijuana under California Health and Safety Code Section 11357. This is an infraction and punishable by a fine of up to $100. If your attorney is able to reduce your charge to simple possession, you may also be eligible for a drug diversion program under P.C. 1000 or Prop. 36. This means that you can participate in a drug treatment program in lieu of going to jail. However, these diversion programs are not available if you are convicted of possession of marijuana for sale under California Penal Code section 11359. Please read our Drug Diversion Programs section for more information.
If I have been charged with possession of marijuana for sale, who should I call?
Wallin & Klarich has over 40 years of experience in successfully representing Southern California residents who have been charged with possession of marijuana for sale under HS 11359. Drawing from our extensive years of experience, we are available to answer any questions you have and are willing to go the extra mile in your defense.
With offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.
If you are facing prosecution for possession of marijuana for sale, call our talented and professional defense attorneys today at (877) 4-NO-JAIL or (877) 466-5245. We will be there when you call.