Possession For Sales

June 15, 2020 48299488 0 Comments

For those arrested for possession for sales of controlled substance (Health & Safety Code sections 11351 and 11378) and sales related-offenses (Health & Safety Code section 11352 and 11379), the charge will ultimately be filed as a felony, punishable by state prison sentence (a minimum of 16 months).  The significant difference between simple drug possession cases and drug sales-related cases is that the prosecutor believes that the defendant had the “intent to sell” the drugs to others.  The indicia of evidence used to establish “intent to sell” will usually be based upon the following:

  • the drugs were packaged in a quantity and manner consistent with sales
  • the defendant was found in possession of “pay/owe” sheets
  • a scale was found in the possession of the defendant
  • any statements by the defendant indicating he/she was selling the drugs  
  • any statements by witnesses who purchased drugs from the defendant
  • the defendant has prior convictions for drug sales offenses
  • surveillance by law enforcement of the defendant in the act of selling drugs
  • the defendant was in possession of a large amount of cash in small denominations

Any factor, or combination of these factors, can lead a prosecutor to file a possession of a controlled substance for sales charge.  Additionally, the greater the number of factors present, the greater the difficulty in overcoming the perception that the drugs were possessed solely for the defendant’s personal use.   In the vast majority of possession for sales cases, a defendant will not be offered the option of attending a drug treatment program, in lieu of serving time in custody.  Moreover, the defendant may not desire treatment, and as such, has a right to pursue his/her case through traditional criminal proceedings (pre-trial hearings, motions to suppress, preliminary hearing and jury trial).  

If, however, the defendant desires drug treatment, then his/her attorney can carefully evaluate the case.  Depending on the “intent to sell” factors actually present in a given case, and the specific circumstances involved, the defendant, through his/her attorney, may be able to make a credible argument that the drugs were, in fact, for personal use.  If successful, a licensed and structured drug treatment program can be properly presented as an alternative to jail time.   To do so effectively, the defendant’s attorney must demonstrate to the satisfaction of the prosecutor (and, maybe to the court, too)that:

  • the client has a clear (and, perhaps documented), detailed history of chronic/habitual drug use
  • the drugs involved in the present case are of the same type the client typically uses
  • the client has an expressed and sincere desire for treatment (usually residential treatment)
  • there is a drug treatment facility available/willing to serve the clients’ needs, as well as arrange transportation to the facility from custody, if needed/necessary  
  • a written report, prepared by a licensed and qualified drug treatment expert, can be shared to substantiate the above

Under these circumstances, a knowledgeable and experienced attorney may persuade the prosecutor that placement in a drug treatment facility is an appropriate alternative to incarceration.  It is imperative that the client is open, amenable and desirous of not only structured drug treatment, but is also agreeable to regular testing and regular progress reports.  Any resistance by the client to reasonable drug treatment conditions requested by the prosecutor and/or court, may suggest that the client’s primary goal is merely trying to avoid custody.  If so, the opportunity for drug treatment may be denied.