Drug Possession & Sales Bail Bonds

In Orange County, California, felony drug cases are classified in degrees, such as first degree, second degree, third degree, and state jail felony. The first degree is the most serious and carries the harshest sentences.

Drug possession (including possession of marijuana, cocaine, methamphetamine, or heroin) is the first charge applied when an individual is arrested and drugs are found. From this point, the authorities may determine whether there was intent to distribute the drugs based on the amount found. At that point, charges may be increased to sales or even trafficking.

First Choice Bail Bonds can provide bail bonds for all drug related charges including:

• Drug possession, possession of a controlled substance
• Marijuana possession, cocaine possession, crack cocaine possession, heroin possession, possession of ecstasy pills, meth possession
• Drug trafficking, intent to distribute, conspiracy to deliver
• Methamphetamine manufacture
• Illegal search and seizure
• Failure to comply with a search warrant

Sometimes clients that seek our help suffer from drug or alcohol addictions that have led to their arrest. We strongly believe in drug treatment as an alternative to jail time for our clients who suffer from an addiction and are committed to helping clients clean-up their lives and enjoy a better future. If you are interested, we will help you get the treatment you need.

Though drug charges are very serious, being charged with a drug crime is not the end of the world. In fact, it may be the wake-up call you need to turn your life around.

If you need help with Bail or have questions, please call us today for a free and confidential consulation.

888-SOS-BAIL or 888-767-2245

Federal and state drug possession laws make it a crime to willfully possess illegal controlled substances such as marijuana, methamphetamine, cocaine, LSD, "club drugs," and heroin. These laws also criminalize the possession of "precursor" chemicals used in drug cultivation and manufacturing, as well as certain accessories related to drug use. Drug possession laws vary according to drug type, amount, and geographic area of the offense. Possession of small quantities may be deemed "simple" possession, while possession of large amounts may result in a charge of presumed "possession with intent to distribute."

Possession:

    * Health and Safety Code Section 11357(a), HS 11357(a), the possession of any concentrated form of cannabis (hashish). This offense can be a felony or misdemeanor.
    * Health and Safety Code Section 11357(b), HS 11357(b), the possession of less than 28.5 grams of marijuana. Misdemeanor.
    * Health and Safety Code section 11364, HS 11364, the possession of paraphernalia which is a misdemeanor.
    * Health and Safety Code Section 11377, HS 11377, possession of more serious drugs such as methadone, PCP, LSD, Ketamine, codeine and Methamphetamine. Wobbler.

Manufacturing and Sales (Felonies):

    * Health and Safety Code Section 11351, HS 11351, possession for sale of opium or cocaine or any derivative.
    * Health and Safety Code Section 11355, HS 11355,sale or transportation of  opium or cocaine or their derivatives.
    * Health and Safety Code Section 11378, HS 11378, possession for sale of certain such as PCP, LSD, Ketamine and Methamphetamine.
    * Health and Safety Code Section 11379.6, HS 11379.6, manufacturing of drugs such as methadone, PCP, LSD, codeine, Ketamine and Methamphetamine.

Drug Sales Bail Bonds

The law does not require the police to prove you DID sell, just that your intent was to sell. This is done by the circumstances of the possession and by expert opinion of the police.

Many factors will be relevant to proving that a person’s intent was to sell, rather than personal use. One is the person’s typical level of usage. Another is packaging. Many small units (balloons, bindles, baggies) tend to show that it was pre-packaged to sell. Where the drugs are found and what is found with them is often a key factor. Three bindles of heroin may well be for personal use, but maybe not if they are found in your pocket as you stand on the street corner at 2:00 a.m. in the prime drug dealing district.

If the drugs are found with scales for measuring quantity, (and especially if there are drug traces on them), or with large amounts of cash (like 100- $20 bills), customer lists, boxes of tiny plastic zip lock bags, or a weapon, police or a jury may well draw the “for sale” conclusion.

Evidence of statements a suspect made in front of witnesses that show an intent to sell drugs may provide the missing legal intent to prove a “drug sales” charge. In addition, experienced narcotics officers will be allowed to testify that from their experience these factors and the quantity found are consistent with an intent to sell the drugs.

Let’s not get hung up on the “for sale” words either. In most jurisdictions it does not matter if the drugs are to be sold for cash, given away, or “loaned.” If the prosecutor can prove an intent to “distribute” illegal drugs, it’s good enough.

Drug Possession: The Penalties

The penalties for possession with the intent to sell are generally much greater than those for simple possession. Consequences also vary depending on the type of drug, the amount of the drug, and the defendant's past drug convictions. The penalties are greater for possession of drugs that have a higher potential to cause physical injury or death. Penalties for marijuana possession, for example, are often less than those for the possession of an equal amount of cocaine or heroin.

The penalties are often twice as harsh if evidence suggests that the drugs were intended for sale to minors. Drug possession or distribution near a school, university, or daycare center may also result in severe penalties. Drug possession offenders can face prison or jail time, fines, probation, and mandatory treatment programs. Several U.S. jurisdictions have mandatory minimum penalties for drug possession offenders, regardless of individual circumstances.

Drug possession is a potentially serious offense that may result in punishment ranging from heavy fines to jail time. Statistics show that prosecution for minor drug offenses is becoming increasingly common. Approximately 20 to 30 percent of all criminal arrests involve drug possession or drug trafficking offenses.

If you or a loved one has been charged with drug possession, you need to ensure that your legal rights are protected. Please contact us today for a FREE consultation.  We can help you understand your legal rights and options.  888-767-2245 or 888-SOS-BAIL

California Proposition 36

The Substance Abuse and Crime Prevention Act, also known as Proposition 36, was passed by 61% of California voters on November 7, 2000. This vote permanently changed state law to allow first- and second-time nonviolent, simple drug possession offenders the opportunity to receive substance abuse treatment instead of incarceration. Click here for more informatin about prop 36.

Under California’s P.C. 1000 program, Prop 36 and some other recently passed propositions, drug offenders who can establish that the drugs found in their possession was for personal use only can avoid jail.

Prop 36 applies to defendant’s with new charges for drug possession or use offenses who don’t qualify for P.C. 1000. To qualify for Prop 36, defendant cannot be charged with sale or manufacture or any other non-drug crimes (even a DUI) at the same time. It is important to note that offenders can be excluded from consideration under Prop 36 if they have a prior conviction for a serious or violent felony (a "strike"), unless they have served their prison time and have been out of prison for five years with no felony convictions or misdemeanor convictions involving violence.  Thos already on probation can qualify for Prop 36 if the violation of probation allegation itself qualifies for Prop 36.

Penal Code Section 1000 (PC 1000) in Orange County

Penal Code Section 1000 allows tremendous relief from certain limited drug and alcohol offenses.   The policy in California is that certain drug offenses and alcohol offenders should not serve jail time.   The theory is that treatment is appropriate, not punishment.   A person charged with one of these offenses must enter a guilty plea that the court does not enter as a judgment of conviction.   After the completion of a 12 week class, 18 months of arrest-free behavior, and a payment of a small fee for court costs, the court enters a judgment of dismissal .  

P.C. 1000 allows first time drug offenders who have no prior criminal  record to plead guilty but, be permitted to attend a four month class that meets once a week, in lieu of serving jail time. Once they have successfully completed the class and a total of 18 months has passed without another criminal arrest or conviction, and all fees associated with your case have been paid, the original case can be dismissed by the court.

In our experience, many defendants don’t take proper advantage of PC 1000.   One must be absolutely committed to remaining drug-free during the course, and for the remaining period until the court dismisses the case.   Beware, the policy to keep drug offenders out of jail doesn’t mean repeat offenders, or drug dealers will remain free from custody.   Read more about PC 1000

Call us today to determine if you qualify for PC 1000 from your drug offense or alcohol offense in Orange County.

888-767-2245 or 888-SOS-BAIL

The Crime of Drug Possession: Its Not What You Think It Is

By: Edward Martinovich, Attorney at Law, and Helen Kim

The government engineered a drug bust where Defendant Kitchen was scheduled to purchase two kilograms of cocaine from federal agents. Kitchen got into the vehicle of the undercover federal agents and picked up the kilograms of cocaine and held them for a couple of seconds. He inspected the substance and made a comment on its purity. At that point, federal agents arrested him. Kitchen was charged with possession of cocaine with intent to distribute in violation of 21 U.S.C.A. 841(a)(1).

21 U.S.C.A. 841

(a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally -- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance;

In United States v Kitchen, the Court found that there was insufficient evidence to prove the possession element of the crime because the defendant never took affirmative steps to exert dominion and control over the cocaine. To justify a conviction for a possession charge brought pursuant to 21 U.S.C.A. 841, the government must present evidence that the defendant knowingly possessed the controlled substance; that is, that the defendant knowingly exercised dominion and control, actual or constructive, and individually or jointly over the substance. 57 F.3d 516 (7th Cir. 1995). Mere physical proximity or association with someone who does the drugs is not enough to establish possession.

Actual possession

In order to sustain a conviction under 21 U.S.C.A 841(a)(1), the government must show that (1) the defendant knowingly or intentionally possessed a controlled substance, (2) he possessed the controlled substance with the intent to manufacture, distribute, or dispense it and (3) he knew that the material was a controlled substance.

In Kitchen, the Court held that there was insufficient evidence for actual possession because nothing on the record proved that the defendants momentary holding of the cocaine constituted possession of the drugs. No transaction had occurred and the defendant had not assented to the sale. Instead, the defendants holding was in the context of inspection and not delivery.

The particulars of a given drug transaction determine conduct and possession. However, in prior cases where actual possession has been proven, there is clear assent demonstrated by the defendants to the drug transaction and the defendants have engaged in some act that was consistent with transporting the narcotics away from the scene of the sale. In United States v Toro, the defendant took the cocaine from the government agent and put it in a briefcase. 840 F.2d 1221, 1238 (5th Cir. 1988). In United States v Jones, the defendant loaded bales of marijuana into his van. 676 F.2d 327, 332 (8th Cir). In each case, the defendants handling of a controlled substance allowed each defendant to exercise dominion and control over the substance.

Under 21 U.S.C.A 841, physical dominion or control over a controlled substance is not the only proof of possession. Constructive possession also constitutes the offense of possession.

Constructive possession

Constructive possession is the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance. Constructive possession may also be shared with others. Possession of large amount of marijuana among several people working together may be sufficient to show that each has constructive possession. United States v. Watkins(1981, CA4 SC) 662 F2d 1090. In Watkins, the Court found that a judge or jury could reasonably believe that the defendant transported 23,000 pounds of marijuana in a boat although the 23,000 pounds of marijuana was never witnessed on the boat but found on a tractor-trailer instead. The Court found that at some stage of the transaction, each defendant had the power to exercise dominion and control over the marijuana and the totality of the evidence established a continuous, single operation.

In Kitchen, although the defendant held the cocaine in his hands for a couple of seconds, he did not have a recognized authority to exert control over it. No money had been exchanged when the defendant held the cocaine in his hands. Thus, the Court found that there was insufficient evidence to prove that the defendant had constructive possession over the cocaine. The defendant did not have the knowing exercise of, or the knowing power or right to exercise, dominion and control over the cocaine.

Whereas 21 U.S.C.A. Section 841 deals with possession of controlled substances with the intent to distribute, dispense or manufacture, Section 844 deals with simple possession.

21 U.S.C.A. 844

This section provides in part: (a) It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this title

Under 21 U.S.C.A. 844(a), a defendant can be convicted for simple possession even if the defendant is found in possession of a small amount of the drug even if it cannot be used for its common purposes. In United States v Harold, the defendants car was seized and searched, and several marijuana seeds and .289 grams of marijuana were found in various places of the car. The Court held that, although only a small amount of marijuana was found, it is well-established under federal law that a conviction for possession will be upheld where any measurable amount of any controlled substance is found. 588 F.2d 1136 (1979, CA5 Fla.).

Under 21 U.S.C.A. 844(a), quantity is not an element of simple possession but determines penalty provisions. In United States v Butler, the Court held that possession of cocaine in excess of 5-grams was an element that bumped a misdemeanor up to a felony. 74 F.3d 915 (1996, 9th Circuit, Wash).

Conclusion

As is clear from the discussion in this article, the laws concerning the possession of marijuana, controlled substances and the like is, indeed, quite complex. The term possession as used in the law does not have the same meaning as when it is used everyday language. If you need further help understanding your situation, please contact us toll free at any time. 888-767-2245

DRUGS: The differences between sales, manufacturing, trafficking and distribution of drug

By Mitch Nelson, Attorney at Law and Natalie Banach

$321 Billion. ---That is the cursory estimate of the value of the international drug trade, according to the United Nations 2005 World Drug Report. What's more, about 200 million people (5 percent of the population ages 15-64) are thought to have consumed illegal drugs at least once in the last year. It is undeniable that the global drug trade is large, widespread and deadly.

The high demand for illegal drugs and paraphernalia has led to the emergence of complex black markets all over the world. As with legal commerce, the illegal drug trade is multi-layered with manufacturers, processors, distributors, wholesalers and retailers all caught up in the mix. These international networks also deal in smuggling and trafficking.

In addition to being widespread and complex, however, the drug trade is also highly fragmented. It is the particular nature of production and manufacture of the different drugs that accounts for this. One of the most popular illegal substances, cannabis, is usually grown and sold locally. On the other hand, substances such as cocaine and heroin usually require either large swaths of land to grow or elaborate labs to manufacture. For this reason, large organized drug cartels are often behind the distribution of these drugs. The different offenses associated with the drug trade are as far-reaching as the trade itself. A drug offense can refer to anything from the possession, to the use, to the sale or to the furnishing of any drug or intoxicating substance that is prohibited by law. Most of these offenses are felonies and the penalties can be severe. Some of the factors that determine the severity of a sentence include the quantity of the drug, its classification and the purpose of the possession (for personal use or sale). In addition, factors such as weapons possession or having large amounts of money on one's body, can also affect the ultimate punishment for a drug offense. In the United States, the foundation for the government's fight against the abuse of drugs is the Controlled Substance Act. This law was put into affect in 1970 and is a consolidation of the various laws regulating the manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and chemicals used in the illegal production of controlled substances. The following article will outline the differences between the sale, manufacturing, trafficking and distribution of drugs.

Manufacture The manufacture of an illicit drug or substance is defined as the either the preparation or completed acts to produce, propagate, compound or process that drug or substance. According to the Controlled Substances Act, this process can be done directly, indirectly, by the extraction of substances of natural origin, or by means of chemical synthesis. In addition, the term manufacturer refers to the person who manufactures the drug or substance. The manufacture of illegal drugs can be broken down into two classes: those extracted from plants and those synthesized through chemical processes. Drugs such as cannabis and cocaine, where farming is needed for mass production, fall under the first class. In the second class such as methamphetamines, the chemical processes associated with manufacture are more important. In general, penalties for the manufacture of illegal drugs or substances can include imprisonment, anything from a term of years to life, and substantial fines. The severity of the penalties can depend on the amount being manufactured, prior convictions and the type of drug being manufactured.

Trafficking The term drug trafficking refers to the illegal commercial activities associated with the participation in an illegal drug network. Often thought of as smuggling, drug traffickers seek to transfer illegal drugs and substances across jurisdictions, whether it is state or national borders. According to the U.S. Customs Services, each year about 60 million people enter the country via more than 675,000 commercial and private flights. In addition, another 6 million people come by sea, and 370 million by land. More than 90,000 merchant and passenger ships dock at U.S. ports. Amidst all this travel and commercial activity, drug traffickers conceal cocaine, heroin, marijuana and methamphetamines for the subsequent distribution of the drugs in U.S. neighborhoods. Penalties for the trafficking of illegal drugs and substances can include substantial fines in the millions of dollars, as well as imprisonment. Again, the severity of the penalties can depend upon whether or not death or serious injury occurs (in the case of "mules"), the type of drugs being smuggled, the amount and prior convictions.

Distribution The term distribution means to deliver (other than by administering or dispensing) an illicit drug or substance. In addition, delivery includes both the actual or attempted transfer of a controlled substance. The difference between the sale of an illegal drug and the distribution of an illegal substance is that with distribution the substance does not necessarily have to be sold to the user. In regards to the illegal drug trade, there are two primary means of distribution: a hierarchy and a hub-and-spoke layout. A hierarchal arrangement refers to a system in which the manufacturer uses their own men to smuggle, distribute and store the narcotics. A hub-and-spoke layout, conversely, uses local gangs and crime organizations to distribute and sell the drugs. At the center of the hub-and-spoke layout may be cartel, which dictates how the product of the manufacturers gets to the distributors. In general, penalties for the distribution of illegal drugs are severe and can include substantial fines and even life in prison with no parole. However, the penalty can depend upon prior convictions, the amount being distributed, the type of drug and the extent of the network.

Sale The legal definition of a sale entails an agreement where one party, the seller, gives full possession of something, in exchange for a certain amount of money, to the other party, the buyer, who agrees on that price. In terms of a drug offense, the "thing" being handed over will be the controlled or intoxicating substance. For a sale to be proven four elements need to be met. (1) The presence of a buyer and a seller, (2) the existence of the controlled substance to be sold, (3) an agreed upon price, (4) the consent of both parties and the performance of certain acts necessary to complete the transaction, such as the actual handing over of the object. In regards to the illegal drug network, the sale is often the ultimate transfer. It is the sale that transfers the illicit drug into the hands of the user.