If you have been charged with intent to sell or transportation to sell marijuana, then you could be facing felony charges.
Felony possession with the intent to sale under HS 11359 provides the following:
The defendant is charged with possessing for sale marijuana, a controlled substance in violation of Health and Safety Code section 11359
To prove that the defendant is guilty of this crime, the People must prove the following:
- The defendant possessed a controlled substance;
- The defendant knew of its presence;
- The defendant knew of the substance's nature or character as a controlled substance;
- When the defendant possessed the controlled substance (he/she) intended to sell it;
- The controlled substance was marijuana; AND
- The controlled substance was in a usable amount.
Felony possession of HS 11360 provides:
To prove that the defendant is guilty of this crime, the People must
prove the following:
- The defendant (sold/furnished/administered/imported into California) a controlled substance;
- The defendant knew of its presence;
- The defendant knew of the substance's nature or character as a controlled substance; AND
- The controlled substance was marijuana; AND
- The controlled substance was in a usable amount.
Selling for the purposes of HS 11359 means that the person exchanges marijuana for money, services, or anything of value.
Someone administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance.
What is a usable quantity?
Under HS 11359 and HS 11360, a usable amount is a quantity that is enough to be used by someone as a controlled substance. Trace or debris amounts are not usable amounts. However, a usable amount does not have to be enough in either strength or amount to affect the user.
Potential Defenses for HS 11359 & 11360
A Fourth Amendment violation is good place to start when looking at potential defenses to an allegation of HS 11359 or HS 11360. That is, was there an unreasonable search or seizure of the any evidence? A warrantless search is presumptively unreasonable. Therefore, unless there is a warrant exception such as the following:
- Search Incident to a Lawful Arrest
- Exigency
- Plain View
- Automobile Exception, etc.
The evidence may be inadmissible. There are numerous other defenses that may be available and are case specific.
If you have been arrested or under investigation for drug charges, Contact Kern Law, APC today for a free consultation, and speak with me personally about your case.