It is illegal to possess prescription drugs in California if you do not have a valid prescription for them.

Prescription drugs like codeine, fentanyl, adderall, oxycodone (Oxycontin) and hydrocodone (Vicodin) are classified as “controlled substances” by the federal government, and they are regulated by California state law (HS 11350).

If you are caught without a prescription for any of these drugs or similar ones, the infraction will usually be treated as a misdemeanor.

Penalty for Unlawful Possession of Prescription Drugs in California

prescription drug possessionUnlawful possession of prescription drugs falls under “unlawful possession of a controlled substance” in California law, which is a misdemeanor punishable by up to a year in county jail and a fine of up to $1,000.

With the help of a skilled criminal defense attorney, it might be possible to avoid jail time entirely. Some simple drug possession cases in California can be eligible for a “pretrial diversion” program, which allows the defendant to complete an education or treatment program instead of going to jail. More on this below.

On the other end of the spectrum, unlawful possession of prescription drugs can be prosecuted as a felony in certain cases. This includes situations where the person has a prior conviction for a sex crime or serious felony like murder or DUI vehicular manslaughter. A felony conviction carries a sentence of up to 16 months, two years or three years in county jail.

What is ‘Unlawful Possession of a Controlled Substance?’

Prescription drugs are “controlled substances” under U.S. law. This means that keeping and transferring the drugs is restricted by the government, and that having them in your possession is only allowed in certain cases (if they are prescribed by a doctor).

If you have been accused of possessing a drug without a valid prescription, prosecutors will try to prove three things:

  1. That you had possession of the drug.
  2. That you knew it was in your possession.
  3. That there was a sufficient amount of it to use.

More on possession: The prosecutor will try to prove that you had “actual,” “constructive” or “joint” possession of the drug. Actual possession refers to police finding the drug on your body or proving that you had just taken it.

Constructive possession is when police find the drug in an environment that you directly control (apartment, car, etc.). Finally, joint possession is when drugs are found in an environment that you and one or more people directly control.

On knowledge: In order to secure a conviction, the prosecutor must also show that you knew the prescription drug was in your possession and that you knew it was a controlled substance. If, for example, you invite a friend to stay the night at your apartment, it might not be unlawful possession of a controlled substance if you did not know he left drugs behind, or if you reasonably thought that they were over-the-counter drugs.

On the amount: Trace amounts or residue of drugs aren’t enough to convict someone of unlawful possession of a controlled substance. In other words, if a police officer finds small amounts of powder in an expired Oxycontin container in your car, this likely wouldn’t qualify as possession.

Defenses Against Unlawful Possession of Prescription Drugs

As mentioned above, the prosecution in an unlawful possession case will try to prove that you:

  • Had the prescription drugs in your possession,
  • Knew you had them, and
  • Had more than a trace amount.

Because of this, there are a number of different ways to defend a case like this, depending on the circumstances around your arrest.

The most common is that you actually had a prescription. As long as the prescription is current, valid, from a licensed doctor, specifically for you and for a reasonable amount of the drug, you cannot be prosecuted under this law.

Another potential defense is that you weren’t aware of the controlled status of the drug. If, for example, you are visiting a relative and took what you thought were over-the-counter pills for pain, you might be acquitted.

Lastly, illegal search and seizure is another common defense for these cases. If you feel you may have been illegally stopped (racial profiling), illegally searched (no warrant) or have been the victim of excessive force, it is sometimes possible to get evidence excused or entire cases dismissed.

How to Get Pretrial Diversion for Prescription Drug Charges in California

If your case is a simple possession case, it might be possible to participate in California’s pretrial diversion program for drug offenses.

Rather than serving time in jail or facing a fine, participants seek treatment with a state-approved drug rehabilitation provider for 12 to 18 months (defined in PC 1000). In order to participate:

  • You must have had no prior felony convictions in the last five years;
  • You must have had no prior drug convictions related to controlled substances in the previous five years aside from simple possession;
  • The offense was non-violent;
  • There was no simultaneous violation related to narcotics.

Upon successful completion of the pretrial diversion program, your records can be sealed. This means that the offense is inaccessible to civilian records requests, but can still be available to state agencies.

Proposition 47 Sentence Reduction

pretrial diversion for prescription drugsPrior to 2014, all convictions for unlawful possession of controlled substances were felonies. California voters passed Proposition 47 that year, which reduces penalties for drug and theft crimes.

If you or someone you know had been sentenced with a felony prior to the passage of Proposition 47, you might be eligible to have your sentence reduced. Contact us today to discuss your options.

Related: Penalty for Unlawfully Selling Prescription Drugs in California

Depending on the facts of your case, you could be charged with “possession of controlled substances for sale” if there is evidence that you meant to sell the illicit drugs in your possession.

This is a much more serious charge. It is a felony with no option for pretrial diversion. If convicted, you could face up to two, three or four years in county jail and up to a $20,000 fine.

If you are arrested in the act of selling prescription drugs, you could be charged with “sale or transportation of a controlled substance,” which is the most serious of California’s controlled substance laws.

This is also a felony, and it carries a sentence of up to a year of probation or three, four or five years in county jail (up to nine years if you crossed at least two county lines).

These is some nuance that comes into prosecuting and defending these cases. The presence of items like scales, packaging or cash can trigger these charges from an overzealous prosecutor, and because they are so serious, this is why it is so valuable to have a skilled criminal defense attorney to help you build your defense.

Speak With a Los Angeles Drug Crimes Lawyer Today

Even though the state has recently eased up on punishments for drug crimes, we can’t expect a prosecutor to “take it easy” with prescription drug possession charges.

State law gives us a number of different avenues for reducing charges or avoiding jail time altogether, and an experienced Los Angeles criminal defense attorney can help you navigate the state’s criminal justice system. I’ve served the Los Angeles area for more than 30 years, handling hundreds of drug crimes in that time, and I have the knowledge and experience to take your case. Call today for your free case review.