California Drug Crimes Involving Hydrocodone
Possessing hydrocodone without a valid prescription or beyond the scope of the prescription is a crime in California. It carries very serious punishment, including jail time and expensive fines. Depending on the circumstances of your arrest, prosecutors may file additional charges to or in lieu of a possession charge.
Hydrocodone’s Medical Uses
Hydrocodone is a controlled substance that is a type of opioid partly synthetic and is derived from codeine, which is an opiate made from the opium poppy plant. 1 Hydrocodone acts to reduce the intensity of pain signals by binding to receptors in the brain that involve the control of pain and diminish the effects of a painful stimulus. 2
Hydrocodone is often combined with acetaminophen (i.e. Tylenol) or ibuprofen (i.e. Advil) to act as a cough medicine to treat a cough or is used alone to treat moderate to severe pain, which is commonly prescribed as Vicodin. Hydrocodone is commonly prescribed to relieve painful conditions resulting from medical or dental surgery and injury-related pain. 3
The United States Controlled Substances Act regulates the manufacturing and possession of controlled substances. All hydrocodone products are listed as a Schedule II controlled substance under the Controlled Substances Act. 4
Schedule II controlled substances:
- Have a high potential for abuse
- Have currently accepted medical use with strict limitations
- Can lead to severe psychological and physical dependence if abused 5
Most people who abuse hydrocodone begin by using the substance for legal medical purposes. Due to the euphoric, numbing sensation of the drug, it is common for people to abuse it.
However, abusing hydrocodone can result in serious side effects including:
- Nausea and vomiting
- Drowsiness and dizziness
- Anxiety
- Irregular or slow heartbeat
- Liver failure
- Seizure 6
Drug Crimes Involving Hydrocodone
(For an overview of other crimes related to drugs, click here)
Some crimes involving hydrocodone include:
- Possession of hydrocodone without a valid prescription (HS 11350)
- Possession of hydrocodone for sale (HS 11351)
- Selling or transporting hydrocodone to someone else (HS 11352)
Possession of Hydrocodone (HS 11350)
Possession of hydrocodone without a valid prescription is a serious crime. If you are arrested while in possession of the drug, you could be charged with a misdemeanor for possession of a controlled substance under HS 11350.
Punishment for Possession of Hydrocodone
If you are convicted of possessing hydrocodone, you face misdemeanor charges in California. This crime is punishable by up to one year in county jail.
If you are not a citizen of the United States, and you are convicted for possession of illegal drugs, you could be deported, denied re-entry into the country and denied naturalization.
Defendants who are found guilty of this crime may qualify to participate in drug treatment instead of serving time in jail or prison, depending on their criminal record. This is called “Drug Diversion,” and it is authorized under Proposition 36, Penal Code 1000 PC, and California drug courts. Drug diversion allows some people who have committed non-violent drug possession offenses to participate in drug treatment programs in lieu of jail or prison terms. Once you successfully complete drug diversion, you may be qualified to have your drug charge dismissed.
Prosecution for a Charge of Possession of Hydrocodone
In order to convict you of possessing hydrocodone in violation of HS 11350, a prosecutor must be able to prove beyond a reasonable doubt the following:
- You possessed a controlled substance;
- You knew of its presence;
- You knew of the substance’s nature or character as a controlled substance;
- The controlled substance was hydrocodone;
- The controlled substance was in a usable amount.
What Constitutes Unlawful Possession?
Possession of hydrocodone is unlawful when you do not have a valid prescription for it. Furthermore, you do not have to actually hold or touch the hydrocodone to possess it. It is enough if you have control over it, or the right to control it, either personally or through another person. However, agreeing to buy a controlled substance does not by itself mean that a person has control over that substance.
In California, the legal definition of “possession” can refer to “actual” possession, “constructive” possession or “joint” possession. Possessing an illegal narcotic under any of these definitions is illegal.
Actual Possession
“Actual” possession of a controlled substance means that you have direct and immediate physical control over it, meaning that the drug is on your person. For example, you have the drug in your pocket, in your purse, briefcase or backpack, or even inside one of your body cavities. Even if the hydrocodone is not on your person (on you) when the police conduct their search, but it is obvious that you possessed the hydrocodone shortly beforehand, you can still be charged with possessing it.
Constructive Possession
“Constructive” possession over a controlled substance means that the drugs were not found on your person but were found in a location over which you exercise control. This could be direct control or control through another person. For example, the police find a stash of un-prescribed hydrocodone in your desk. However, you are not home when the search takes place. Thus, the police did not find you in actual possession of the hydrocodone. The police could find you in “constructive” possession of the drug and may charge you with Health & Safety Code Section 11350.
Keep in mind that simply having access to a controlled substance, or simply being near the drugs (or near someone else who has the drugs) is not by itself sufficient to constitute possession.
Joint Possession
Joint possession means that you and at least one other person share either actual or constructive possession. This could be actual, where, for example, you and a friend are both carrying the hydrocodone on your person, or constructive possession where the hydrocodone is found in your home that you share with a spouse or roommate.
Knowledge of the Presence and Nature of the Substance
In order for you to be convicted of possession of a controlled substance, the prosecution must prove beyond a reasonable doubt that:
- You knew of the drug’s presence; and
- You knew of its nature as a controlled substance.
If you did not know that the hydrocodone was present, or if you did not know what the drug was, you should not be convicted of this offense. For example, you loaned your car to someone last week and without your knowledge, that person left a bottle of un-prescribed hydrocodone in the back seat.
Knowing the precise chemical makeup of the drug is not necessary with respect to the second type of knowledge required. If you know that the drug is a controlled substance, that knowledge is sufficient to satisfy this element of the crime.
What is a Usable Amount?
This element of the crime requires that you possess enough of the drug so that it can be used as a controlled substance. This means that there has to be enough of the substance that it can be used as a drug.
However, that does not mean that there has to be enough of the controlled substance to have a “narcotic effect,” meaning the effect it is ordinarily expected to produce.
Possession of Hydrocodone for Sale (HS 11351)
A more serious crime, this offense relates to possessing the drugs for sale as opposed to possessing them for personal use. If you are charged with this crime, you could face felony prosecution.
Punishment for Possession of a Controlled Substance for Sale
If convicted of this felony, you face either probation with up to a year in county jail, or two, three, or four years in county jail.
Prosecution for a Possession of Hydrocodone for Sale
In order to convict you of possessing hydrocodone in violation of HS 11351, a prosecutor must be able to prove beyond a reasonable doubt the following:
- You possessed a controlled substance;
- You knew of its presence;
- You knew of the substance’s nature or character as a controlled substance;
- When you possessed hydrocodone, you intended to sell it;
- The controlled substance was hydrocodone;
- The controlled substance was in a usable amount.
Sale & Transportation of Hydrocodone (HS 11352)
Sale and transportation of a controlled substance is the most serious possession-related hydrocodone offense.
This offense includes selling hydrocodone for money, services, or anything of value and moving hydrocodone from one location to another, regardless of how far the hydrocodone moved.
Punishment for Sale and Transportation of Hydrocodone
Illegally selling hydrocodone could result in being sentenced to prison for three, four or five years and fined up to $10,000.
Prosecution for a Charge of Sale and Transportation of Hydrocodone
In order to convict you of violating HS 11352, a prosecutor must be able to prove beyond a reasonable doubt the following:
- You sold or transported hydrocodone, or you intended to sell it;
- You knew of its presence;
- You knew of hydrocodone’s nature or character as a controlled substance;
- The controlled substance was hydrocodone;
- The controlled substance was in a useable amount.
Possession of Hydrocodone While Armed (HS 11370.1)
Although not strictly limited solely to possession of hydrocodone, HS 11370.1 is a very serious crime. Under this section, it is a felony to unlawfully possess certain controlled substances while knowingly armed with a loaded, operable firearm.
Punishment for Possession of Hydrocodone While Armed
You face imprisonment in state prison for to two, three of four years if you are convicted of this crime.
Prosecution for a Charge of Possession of Hydrocodone While Armed
In order to convict you for a violation of this crime, a prosecutor must be able to prove the following beyond a reasonable doubt:
- You possessed a controlled substance;
- You knew of its presence;
- You knew of the substance’s nature or character as a controlled substance;
- The controlled substance was hydrocodone;
- The controlled substance was in a usable amount;
- While possessing hydrocodone, you had a loaded, operable firearm available for immediate use; and
- You knew that you had the firearm available for immediate use.
What is a “Loaded Firearm”?
A firearm is loaded when a shell or cartridge is in position from which it can be fired. If the shell or cartridge is placed anywhere else, the firearm is not loaded.
Being Under the Influence of Hydrocodone (HS 11550)
Lastly, you are in violation of CA HS 11550 if you are under the influence of hydrocodone and you do not have a valid prescription, or your use of hydrocodone is beyond the scope of your prescription, i.e. taking more than you are prescribed.
Punishment for Being Under the Influence of Hydrocodone
This offense is a misdemeanor and may result in a jail sentence of 90 days to one year.
Prosecution for a Charge of Being Under the Influence of Hydrocodone
To be convicted of this crime, a prosecutor must be able to prove beyond a reasonable doubt the following:
- You were willfully under the influence of hydrocodone, a controlled substance, when you were arrested.
Defenses to a Charge of Possession of Hydrocodone
There are various legal defenses to a possession charge that a skilled drug crime lawyer could argue on your behalf. The most common legal defense for a charge of simple possession of hydrocodone is that you had a valid prescription for the hydrocodone that you possess.
Valid Prescription
The most common legal defense to a California hydrocodone-related offense for possessing or using hydrocodone is that you used or possessed the drug in strict compliance with a valid prescription. This defense does not apply if you:
- have a fraudulent prescription for the drug (i.e. you violated California’s doctor shopping laws.)
- are found in possession of more drugs than your prescription authorizes; or
- possess someone else’s legally prescribed drugs.
If you cannot establish that you had a valid prescription, there are still a variety of defenses to hydrocodone-related offenses such as mistaken identity, a violation of an individual’s Fourth Amendment rights, or police misconduct.
Mistaken Identity
Another common defense is mistaken identity. You may be able to show that the hydrocodone in fact belonged to another person, and the police were incorrect by assuming that it was yours.
Lack of Knowledge
As mentioned above, all of the elements of the crime must be met in order for you to be convicted of possessing a controlled substance. Hence, in order to be convicted of possessing a controlled substance you must:
- Know you possessed the drug; and
- Know that it was a controlled substance.
For example: You lend your jacket to your friend, Tom. Tom got some un-prescribed hydrocodone and put a bottle of pills in the inside pocket of your jacket. Tom forgot to take the bottle out when he gave you back your jacket. A few days later, you are stopped and frisked by the police and they find the bottle of hydrocodone in your jacket. They arrest you for possession of a controlled substance. However, because the hydrocodone did not belong to you and you did not know it was there, you have a valid legal defense to the charges against you.
Additionally, you must have been aware that the drugs you possessed were a controlled substance. If you did not know that the drugs were illegal, this is a valid defense to the charge.
Illegal Search and Seizure
An illegal search and seizure is also a defense to California hydrocodone-related offenses. An illegal search and seizure is one conducted by police in violation of California’s search and seizure laws. Police are in violation of search and seizure law if they have searched you without a valid warrant or if they lack probable cause that criminal activity occurred. Even if police have a valid search warrant, they may still be in violation of search and seizure laws if they go beyond what is allowed by the search warrant.
If there has been an illegal search or seizure, your attorney can file a motion to suppress evidence. If the court grants this motion, the evidence will be the excluded, and it is likely the case will be dismissed.
FAQs Regarding Hydrocodone Possession
The following are some Frequently Asked Questions (FAQs) from other clients facing drug charges involving hydrocodone.
1. What are some common slang terms related to the possession of hydrocodone?
a. Vicodin
b. Lortab
c. Norco
d. Vikes
e. Hydro
2. Can I be charged with possession of hydrocodone even if I did not intend to use or sell it?
Yes. You can be charged with possession of a controlled substance even if you did not intend to sell or use the drugs. The key issues are whether you had knowledge of the drug’s presence and whether you had control over it. It is not important for what purpose you planned to use the drugs so long as the prosecution can prove these two elements.
3. Should I be convicted of HS 11350(a) if I was not aware of the drug’s presence?
No. In order to convict you of possession of a controlled substance under CA Health and Safety Code section 11350, the prosecution must prove that you knew of the presence of the drug at the time it was found to be in your possession. If you had no knowledge of the drug’s presence you should not be convicted of this offense.
4. Can I be convicted of possession of a controlled substance for prescription medication?
a. Yes. Possession of a controlled substance not only includes illegal drugs such as heroin or methamphetamine, but it can also encompass a wide variety of legal prescription drugs. If you are found to be in possession of prescription medication and do not have a valid prescription from a licensed doctor, your possession of the drugs is considered illegal and you can be convicted under Health and Safety Code Section 11350.
5. If the drugs were found in my car and not on my person, can I still be convicted of possession of a controlled substance?
a. Yes. In order to be convicted of possession of a controlled substance, you do not actually need to be holding or touching the drug to be found in possession of it. Constructive possession exists when the drug is found in an area over which you exercise control. Therefore if the substance is found in your car, bedroom or any other area which you are likely to exert control, you can be prosecuted for possession.
Wallin & Klarich Can Help You Fight Charges of Possession of Hydrocodone
If you or someone you know has been charged with possession of hydrocodone, contact one of our experienced criminal defense attorneys at Wallin & Klarich today. Our attorneys
at Wallin & Klarich have over 40 years of experience successfully defending clients facing criminal drug charges. Hiring an attorney from Wallin & Klarich may be your best chance to avoid the serious consequences of a conviction for possession of a controlled substance.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our criminal defense attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to provide you with the very best legal representation. We are dedicated to giving you the personal attention you expect to help you through this difficult time. We are here to help you get the best result possible in your case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.
1. [https://www.wklaw.com/practice-areas/codeine-possession-hs-11350/]↩
2. [http://www.drugabuse.gov/]↩
3. [Id.]↩
4. [https://www.federalregister.gov/articles/2014/08/22/2014-19922/schedules-of-controlled-substances-rescheduling-of-hydrocodone-combination-products-from-schedule#h-27]↩
5. [https://www.wklaw.com/practice-areas/codeine-possession-hs-11350/]↩
6. [Text of footnote 6]↩
