For those facing misdemeanor drug possession for personal use (commonly Health & Safety Code sections 11350 and 11377), the prosecutor must prove:
- that the defendant possessed a controlled substance;
- that the defendant knew of the substance’s presence;
- what specific controlled substance the drug is;
- the controlled substance was a usable amount.
The law governing simple drug possession applies to both illicit drugs (for example, cocaine and meth) and prescription drugs (for example, vicodin and codeine) and the schedule or lists of these drugs can be found in the United States Controlled Substances Act. “Possession” can be demonstrated by a defendant’s constructive control over the drug (stored in his/her bedroom closet or glove compartment of his/her car), not simply by whether or not he/she is physically holding or touching the drug. Likewise, “knowledge” that the drug is a controlled substance can be inferred circumstantially by the manner in which the drug was obtained (purchased from a known drug location or seller) or by the manner in which it is kept or packaged (stored in a baggie or placed in a bindle, and kept with other paraphernalia, such as a smoking pipe or plastic straw).
Potential defenses to possession of a controlled substance include that the defendant:
- had a valid doctor’s prescription for the drug
- was not in “possession” of the drug,
- was arrested after an unlawful search & seizure, in violation of the 4th Amendment of the United States Constitution right against “unreasonable searches and seizures”
Of course, it is important that for any of these defenses to be credible, they must be accompanied by some manner of evidence or proof, such as the actual prescription given by the doctor, some information as to who the drugs actually belonged to, or the factual and legal basis as to how the police violated the clients’ 4th Amendment right. Absent any of these defenses, and to avoid the potential risks involved “fighting the case”/jury trial, a defendant may seek to “earn” a dismissal of the charge by taking advantage of pretrial diversion, Prop. 36, or a “drug court” program.