Heroin

Heroin is one of the most pervasive street narcotics in American society. It is also one of the most addictive recreational drugs available on the streets. Heroin is illegal to possess pursuant to Health and Safety Codes section 11350. The possession of heroin for purposes of sale is prosecuted under Health and Safety Code section 11351, and the transportation and or sell of heroin is prosecuted pursuant to Health and Safety Code section 11352. If a person is charged with the possession of heroin it is critical that they contact a competent criminal defense attorney.

Simple possession of heroin as charged under Health and Safety Code section 11350 is a felony offense. However, if a person is charged with violating Health and Safety Code section 11350 they may be eligible for Differed Entry of Judgment pursuant to Penal Code section 1000. Under Penal Code section 1000 a person can earn a dismissal of their criminal charges if they successfully complete a narcotics rehabilitation program and they complete a 18 (eighteen) month period of diversion in which they do not violate the law. If a person is not eligible for diversion under the auspices of Penal Code section 1000 they may be able to receive similar relief in drug court or pursuant to Penal Code section 1210 (Prop 36).

The prosecuting attorney will review the evidence in a drug case to determine if a person should be charged with simple possession of heroin or with possession of heroin for purposes of sell. The first determining factor as to whether the prosecuting attorney will charge a person with possession of heroin for purposes of sell or for personal use is the amount of heroin possessed. If a person possesses more than a half of ounce of heroin (14.25 grams) they are not eligible for probation pursuant to Penal Code section 1203.07(a)(1). In addition, to considering the amount of the heroin the prosecuting attorney will further consider if there is other circumstantial evidence that they can use to prove that the person possessed the heroin for purposes of sell. The prosecuting attorney will consider if the arrested person possessed a large amount of money, packaging material, a scale or pay and owe sheets (a drug transaction ledger).

An experience criminal defense attorney can approach a drug sales case from a variety of methods. The first thing that the criminal defense attorney must evaluate is whether or not the evidence of the crime can be suppressed pursuant to Penal Code section 1538.5. If the evidence against the person charged was obtained in violation of the 4th Amendment of the United States Constitution then the evidence can not be used in court. If the criminal defense attorney can not have the evidence suppressed they must evaluate if the evidence is sufficient to prove beyond a reasonable doubt that the heroin was possessed for purposes of sale. In addition to using circumstantial evidence the prosecuting attorney will also utilize an expert witness to give an opinion that the heroin was possessed for purposes of sale. An experienced criminal defense will know how to effectively cross examine the expert witness or possibly use an independent expert to undermine the testimony of the state expert witness. If the criminal defense attorney can undermine the intent to sell element of the sales charge the person charged may be eligible for a diversionary program or at the very least significantly less consequences.