Cocaine

The Simple possession of controlled substance is a violation of Health and Safety Code section 11350. This is one of the most common charges in the criminal justice system. In order to defend a case involving the possession of cocaine base you have to under mine one of the elements of the offense. In order to find a person guilty of violating Health and Safety Code section 11350 the prosecution must prove the following elements:

1. The defendant unlawfully possessed 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;
4. The controlled substance was cocaine or heroin;
AND
5. The controlled substance was in a usable amount.

Therefore the defense attorney must try to disprove one or more of the listed elements. Can the prosecution prove that the substance was in fact cocaine or heroin. Was substance tested in an appropriate fashion. Was the amount sufficient to be considered a usable quantity. How can the prosecution prove that the charged person knew the nature or character of the substance.

If the criminal defense attorney can not undermine one of the elements of the offense the criminal defense attorney can attempt to question the admissibility of the evidence. The criminal defense attorney can file a motion to suppress any and all evidence to obtained during the investigation. The criminal defense attorney will be able to file and be successful in filing a suppression motion if the investigating officers violated the 4th Amendment of the United States Constitution. The 4th Amendment of the United States Constitution prohibits unreasonable search and seizures. Therefore the criminal defense attorney must evaluate how law enforcement discovered the drugs. If the case was initiated by a traffic stop did the officer have a legal basis to initiate the traffic stop. Once the officer came into contact with the accused what was the legal basis for the subsequent search of the accused or the accused’s vehicle or property.

If the criminal defense attorney can not find a legal defense, by undermining the elements of the offense or by filing a suppression motion. The criminal defense attorney must next try to negotiate and or mitigate the charges.

DEOJ (Differed Entry of Judgement PC1000)
If a person is charged with a Simple Possession of a Controlled Substance the accused may be eligible for DEOJ pursuant to Penal Code section 1000. DEOJ allows for a person to enter a plea to the charge and then have the actual entry of judgement for 18 months. During the 18 month period the accused person will be required to complete a drug rehabilitation program. If the person successfully completed the drug rehabilitation program and remained law abiding the court will dismiss the charges.

Proposition 36 (PC1210)
If a person is not eligible for PC1000, because they either failed out of PC1000 or they had recently been sentenced pursuant to PC1000. PC1210 will prevent the accused from going into custody as long as they successfully complete a drug rehabilitation program and do not violate the terms and conditions of their probation.

1210.1. (a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service.

Drug Court
Drug Court is a program that is available to individuals who are no longer eligible for PC1000 and PC1210, or they committed an offense that is not listed in those Penal Code sections. Drug Court is more intense then PC1000. The court will require the accused to complete a drug rehabilitation program, but also make regular court appearances in a special department set up for Drug Court. If the person is not successful the court will issue incrimintal punishment, such as custody.

11350. (a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

Possession of Cocaine or Heroin for Purposes of Sale

The possession of cocaine or cocaine base for sale is illegal pursuant to Health and Safety Code section 11351 and Health and Safety Code section 11351.5 respectively. The primary difference between cocaine versus cocaine base is the fact that cocaine base is not water solable and is smoked only where traditional cocaine is usually in powder format and could be snorted, smoked and or injected (although injection is rare). In addition to possessing cocaine and or cocaine base for sale if the cocaine or cocaine base is move or transported the prosecution will also charge the accused with the transportation of cocaine or cocaine base pursuant to Health and Safety Code section 11352. If a person actually engages in a transaction and sells cocaine or cocaine base the person can be charged with selling cocaine or cocaine base also in violation of Health and Safety Code section 11352.

11351. Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.

11351.5. Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for a period of three, four, or five years.

11352. (a) 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 (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years.

If a person is charged with a criminal drug or narcotics offense it is critical that they retain a competent criminal defense attorney with experience handling narcotics cases. Narcotics cases can involve very complicated legal and evidentiary issues. For example narcotics cases can often involve the use of undercover officers (or agents), cooperating individuals (a citizen or charged individuals that is assisting law enforcement), sealed search warrants (HOBBS warrant) and or wire taps. All of these critical issues require special knowledge and experience because they present unique issues that must be handled correctly. Criminal Defense Attorney Donte T. Wyatt has extensive experience handling complicated narcotics cases. Criminal Defense Attorney Donte T. Wyatt spent several years working as a Deputy District Attorney in the Major Narcotics Unit. As a Deputy District Attorney in the Major Narcotics Unit Criminal Defense Attorney Wyatt worked on hundreds of cases involving these critical issues.