H&S Code Section Article Defined

Transcription

1 H&S Code Section Article Defined California Health and Safety Code section states, in pertinent part: Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance or narcotic drug shall be punished by imprisonment. 1 Like Section 11350, Health & Safety Code includes OVER one hundred (100) specifically named controlled substances, including, but not limited to: 1. Opiates and Opium derivatives, including: Codeine methylbromide, Codeine Methylbromide, Desomorphine, Heroin, Methyldihydromorphine, Morphine methylbromide, Myrophine, Nicocodeine, Oxycodone, Hydrocodone (Vicodin), Dihydrocodeine, Methadone, Psilocybin (mushrooms), et al Hallucinogenic Substances, including: Dimethoxy-Amphetamine, Marijuana, Mescaline, Peyote, Psilocybin, Gamma hydroxybutyric acid, Cocaine, Cocaine base, Fenethylline, Ethylamphetamine, et al Stimulants, including: Amphetamine, Methamphetamine, Dimethylamphetamine, Benzphetamine, Methylenedioxymethamphetamine (MDMA, ecstasy, molly ), et al Depressants, in any compound or mixture, including: Amobarbital, Phenylcyclohexyl Piperidine (PCP), Pphenylcyclohexyl Morpholine (PCM), Piperidinocyclohexane Carbonitrile (PCC), Lysergic acid, et al Id Id.

2 5. Steroids, in any compound or mixture, including: Androisoxazole, Dihydromesterone, Nandrolone, Testosterone, Chorionic Gonadotropin (HGC), Ketamine. 6 How Does the Prosecutor Prove the Charge? If you are charged with possessing methamphetamine (for example), a controlled substance, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code 11352: 1. The defendant sold, furnished, administered, gave away, transported or imported into California a controlled substance 2. The defendant knew of its presence 3. The defendant knew of the substance s nature or character as a controlled substance AND 4. The controlled substance was in a usable amount. Who Can Be Prosecuted Under this Charge? 1. Anyone who transports (for the purpose of this section, transports means moving the substance from one location to another for sale ) a controlled substance or narcotic drug Anyone who imports, sells or administers a controlled substance or narcotic drug Id.

3 3. Any individual who aids and abets the commission of, or conspires to commit, any act prohibited by this section. 9 Defenses? Depending on the circumstances, an experienced and diligent attorney, like the attorneys of the Aizman Law Firm, will evaluate your case and assess the most effective legal defenses to assist in negotiating a possible charge reduction, or if applicable, dismissal of the charges. Below are possible legal defenses to a charge under Health & Safety Code 11352: 1. The Controlled Substance Was PRESCRIBED. Under Health & Safety Code 11352, it specifically provides a legitimate legal defense if the controlled substance in possession is a prescription. It states: Except as otherwise provided in this division, every person who transports any controlled substance classified in which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state. This means that, if you are found in possession of codeine (for example), regardless of whether it is a useable amount, you did NOT unlawfully possess any controlled substance, if, in fact, your doctor prescribed the medicine to you, in your name, for your use, in treatment of your illness. Under the law, with the help of a diligent and conscientious attorney, you would only need to raise a reasonable doubt about whether his or her possession of the drug was lawful because of a valid prescription You did NOT TRANSPORT the Controlled Substance. An attorney who fully understands drug laws, like Health & Safety Code 11352, can attempt to persuade the prosecutor that, regardless of the amount of movement, or lack thereof, that the element of intent to transport the controlled substance 9 Id. 10 See People v. Mower (2002) 28 Cal.4th 457, 479, 122 Cal.Rptr.2d 326, 49 P.3d 1067

4 cannot be met. As a result, a charge reduction to simple possession may be possible. 3. You did not KNOW of the substance s presence and/or nature and character. This means that, if the arresting officers did not obtain sufficient evidence, such as eyewitness account, fingerprints, etc., which would show that you knew that the substance was present and/or knew of the nature and character of the substance, then a skilled attorney can attempt to persuade the prosecutor that the element of knowledge is not met, and thus a charge under Health & Safety Code cannot be proven. 4. You were a victim of ENTRAPMENT by law enforcement officials. Entrapment: The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. 11 Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the criminal There is INSUFFICIENT EVIDENCE against you. Lack of Evidence: A diligent and conscientious defense attorney can show the prosecutor that they do not have enough evidence to convict you under the law of Health & Safety Code This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial. Penalties A Felony Conviction Id.

5 This charge is a felony and carries all the weight and stigma of being deemed a felon under the eyes of the law, including but not limited to: Lose right to possess firearm, lose right to vote, lose right to sit on a jury, lose right to hold public office, must provide law enforcement with DNA sample, immigration consequences, as a drug abuser, if you are a noncitizen. 3-9 years in prison, as specifically enumerated under Section year in the county jail, along with 3-5 years probation Fines up to $20,000, a precise amount as determined by the court Community Service, an amount as determined by the court NOTE: Sentences and fines may be increased dramatically, if you have any priorable drug offenses, in addition to a current charge under Section Related Offenses Health & Safety Code Possession of a Controlled Substance Health & Safety Code Possession and/or Purchase of a Controlled Substance for Sale Health & Safety Code Marijuana Cultivation Health & Safety Code Possession of Marijuana for sale Health & Safety Code Transport, distribute or import Marijuana Health & Safety Code 11375(b)- Possession of a Designated Substance for Sale Health & Safety Code 11377(a)- Possession of a Non-Narcotic Substance for Sale Health & Safety Code Possession of a Controlled Substance for Sale Eligibility IS NOT eligible for an Deferred Entry of Judgment sentence, IS NOT a strikeable offense, DOES require registration as a drug offender, IS NOT eligible for Proposition 36-diversion sentence. Possible Immigration Consequences 13

6 IS a bar from relief from removal proceedings o Under the law, any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one s own use of 30 grams or less of marijuana, is deportable. 8 U.S.C. 1127(a)(2)(B)(i). Drug addicts and abusers are deportable and inadmissible even without a conviction. Likewise, those who the government has reason to believe are or were drug traffickers or their assistants are inadmissible, even without conviction. 8 U.S.C. 1227(a)(2)(B)(ii). IS considered an aggravated felony for immigration purposes o Aggravated Felony: This is a predetermined category of crimes that, include both misdemeanor and felony offenses, which can bar a noncitizen from utilizing many different forms of immigration benefits. If you are convicted of a crime that is automatically considered an aggravated felony, it will likely subject you to removal proceedings before an immigration judge. Here, a conviction under Section 11352, depending on the circumstances, IS considered an aggravated felony. IS considered a crime of moral turpitude for immigration purposes o Crime of Moral Turpitude: This includes crimes, which are considered to be objectively morally inexcusable, which includes both misdemeanor and felony offenses. Any offense which is shocking to the conscious of the average person can bar a noncitizen from utilizing many different forms of immigration benefits. If you are convicted of a crime that is automatically considered a crime of moral turpitude, it will likely subject you to removal proceedings before an immigration judge. Here, a conviction under Section 11352, depending on the circumstances, IS considered a crime of moral turpitude. NOTE: For a full review of offenses categorized as aggravated felonies under immigration law, visit: notes _05.pdf. Disclaimer: The contents of this article are for general informational purposes only, and should not be construed as solicitation, advertisement, nor does it constitute an attorney-client relationship. All of the information provided is provided as is, with no warranties, and should NOT be relied upon as legal advice. For the most accurate information available, and for information that directly applies to the circumstances involved in the criminal matter against you

7 or your family, you should always seek out the assistance of an attorney. The decision to retain an attorney is an important one, and one that you must make carefully based on your own judgment and evaluation of that attorney. Immigration Disclaimer: If you are not a citizen, some criminal convictions under the Health & Safety Code will result in mandatory immigration consequences. In all circumstances, if you have been convicted of a crime and you are not a citizen, it is in your best interest to seek an immigration attorney to ensure that the effects of the crime do not bar you from any possible forms of relief that would spare you from deportation. The Aizman Law Firm practices exclusively criminal law, and will fight to ensure the best possible outcome in your criminal matter.