What Is Drug Possession?
In California, it is illegal to possess certain controlled substances without a valid prescription. Under Health & Safety Code 11350, simple possession of drugs such as heroin, cocaine, opiates, and certain prescription medications is a criminal offense. Since the passage of Proposition 47 in 2014, most simple possession charges have been reclassified from felonies to misdemeanors — but the consequences of a conviction remain serious.
If you have been arrested or charged with drug possession in San Jose, San Francisco, Oakland, Gilroy, Morgan Hill, or anywhere in Santa Clara County, the attorneys at RV Litigation Group PC can help. We explore every option — from drug diversion programs that can lead to dismissed charges, to aggressive defense strategies that challenge the evidence against you.
What the Law Says
Health & Safety Code 11350 — Possession of Controlled Substances
"Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (b) or (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 specified in paragraph (2) of subdivision (a) of Section 11057... shall be punished by imprisonment in a county jail for not more than one year." — California Health & Safety Code Section 11350(a)
This statute covers possession of a wide range of controlled substances, including heroin, cocaine, psilocybin, certain opiates, and prescription drugs like oxycodone or hydrocodone when possessed without a valid prescription. The key elements the prosecution must prove are: (1) you possessed a controlled substance, (2) you knew of its presence, (3) you knew it was a controlled substance, and (4) the substance was in a usable amount.
Drug Diversion — PC 1000 and Proposition 36
"If a person is charged with a qualifying drug offense and the court determines that the person may benefit from education, treatment, or rehabilitation, the court may grant deferred entry of judgment..." — California Penal Code Section 1000(a)
California law provides alternatives to incarceration for people charged with simple drug possession. PC 1000 (Deferred Entry of Judgment) allows eligible defendants to complete a drug education or treatment program. Upon successful completion, the charges are dismissed. Proposition 36 offers a similar path for repeat offenders. These diversion programs can result in no conviction on your record — making them an extremely valuable option when available.
Proposition 47 — Reclassification
"Notwithstanding Section 11350 of the Health and Safety Code... simple possession of a controlled substance shall be a misdemeanor." — California Penal Code Section 1170.18 (Proposition 47)
Proposition 47, passed by voters in 2014, reclassified simple drug possession from a felony to a misdemeanor for most defendants. This also applies retroactively — if you were previously convicted of felony drug possession, you may be eligible to have your conviction reduced to a misdemeanor. Our attorneys can help you petition for resentencing or reclassification under Prop 47.
Real-World Examples
These scenarios illustrate how drug possession charges commonly arise in the Bay Area:
A man in San Jose is pulled over for a broken taillight. The officer notices a small baggie of white powder on the passenger seat during the stop. Field testing confirms it is cocaine. The driver is arrested and charged with possession of a controlled substance (HS 11350). However, if the officer did not have probable cause to look beyond the traffic violation, the search may be challengeable.
A woman in Santa Clara is found with hydrocodone pills during a routine security screening at a courthouse. She has a legitimate prescription but does not have the prescription bottle with her. She is detained and initially charged with possession. Her attorney obtains pharmacy records confirming the valid prescription, and the charges are dropped — demonstrating that valid prescription is a complete defense under HS 11350.
Police execute a search warrant at an apartment in Oakland shared by three roommates. Heroin is found in a common area. All three roommates are charged with possession. However, the prosecution must prove that each individual knew the drugs were there and exercised control over them. Two roommates who were unaware of the drugs may have valid defenses based on lack of knowledge and constructive possession.
A college student in Morgan Hill is caught with a small amount of psilocybin mushrooms. He has no prior criminal record. His attorney negotiates entry into a PC 1000 drug diversion program. After completing a drug education course over several months, the charges are dismissed entirely, and the student petitions to have his arrest record sealed — leaving no lasting impact on his future.
Penalties
Since Proposition 47, most simple drug possession charges are misdemeanors. However, the consequences of a conviction extend well beyond the courtroom.
| Charge | Classification | Jail | Fine |
|---|---|---|---|
| Simple Possession (HS 11350) | Misdemeanor | Up to 1 year county jail | Up to $1,000 |
| Possession of Drug Paraphernalia (HS 11364) | Misdemeanor | Up to 6 months county jail | Up to $1,000 |
| Under the Influence (HS 11550) | Misdemeanor | Up to 1 year county jail | Up to $1,000 |
| PC 1000 Diversion (if eligible) | Alternative | No jail — drug education program | Program fees only |
| Prop 36 Diversion (if eligible) | Alternative | No jail — drug treatment program | Program fees only |
Additional consequences: Even a misdemeanor drug conviction can have far-reaching effects. It can appear on background checks for employment and housing, result in the loss of professional licenses, trigger academic disciplinary proceedings, and affect child custody arrangements. For non-citizens, a drug conviction can lead to deportation or denial of immigration benefits — even for a first-time misdemeanor. These collateral consequences make it critical to pursue dismissal through diversion whenever possible.
Legal Defenses
Drug possession charges can be challenged on multiple grounds. The right defense strategy depends on how the drugs were discovered, the circumstances of your arrest, and the evidence the prosecution has. Here are the most common defenses our attorneys use:
1. Unlawful Search and Seizure
The Fourth Amendment protects you against unreasonable searches and seizures. If police found the drugs during an illegal search — for example, without a valid warrant, without your consent, or without probable cause — we file a motion to suppress the evidence under Penal Code 1538.5. If the motion is granted, the drugs cannot be used against you and the case is typically dismissed. We scrutinize every aspect of the search, from the initial stop to the scope of the search itself.
2. Lack of Knowledge
The prosecution must prove that you knew the drugs were in your possession and that you knew they were a controlled substance. If someone left drugs in your car, if you were carrying a bag that belonged to someone else, or if the drugs were found in a shared space where others had access, you may not have had the required knowledge. We present evidence showing that you were unaware of the drugs' presence.
3. Temporary or Fleeting Possession
If you briefly possessed drugs only to dispose of them or turn them over to law enforcement — for example, you found drugs in a public area and were carrying them to throw away or give to police — this constitutes temporary possession and is a valid defense. The possession must be momentary and for the purpose of disposal or surrender, not for use.
4. Valid Prescription
If you had a valid prescription for the controlled substance, you have a complete defense to the charge. This commonly arises with prescription opioids, benzodiazepines, and other medications. We obtain your medical records and pharmacy history to document that the drugs were lawfully prescribed to you and that you possessed them in accordance with your prescription.
5. Crime Lab Analysis Challenges
Field tests used by police to identify drugs at the scene are notoriously unreliable and can produce false positives. We demand formal laboratory analysis and challenge the chain of custody — the documentation showing who handled the evidence and when. If there are gaps in the chain of custody, if the lab results are inconclusive, or if the substance turns out not to be a controlled substance, the case may be dismissed.
Frequently Asked Questions
Since Proposition 47 passed in 2014, simple possession of most controlled substances under HS 11350 is a misdemeanor, carrying up to one year in county jail. Previously, it was a felony. However, possession of certain substances in large quantities, or possession by individuals with certain serious prior convictions (such as sex offenses), may still be charged as a felony.
Drug diversion programs like PC 1000 (Deferred Entry of Judgment) and Proposition 36 allow eligible defendants to complete drug treatment or education instead of serving jail time. If you successfully complete the program, the charges are dismissed and you can have the arrest record sealed. Diversion is available for most simple possession charges and is one of the most effective ways to avoid a criminal conviction.
Generally, no. The Fourth Amendment protects against unreasonable searches and seizures. Police typically need a warrant, your consent, or a recognized exception — such as probable cause, search incident to arrest, plain view, or exigent circumstances — to legally search you. If the search was unlawful, any drugs found may be suppressed, meaning they cannot be used as evidence against you.
HS 11350 covers possession of controlled substances including heroin, cocaine, psilocybin, opiates, and certain prescription drugs (like oxycodone and hydrocodone) possessed without a valid prescription. Methamphetamine is covered under a separate statute (HS 11377). Marijuana possession has been largely decriminalized under Proposition 64 for adults 21 and older.
Yes, it can. Drug offenses are treated very seriously in immigration law. Even a misdemeanor drug possession conviction can be considered a deportable offense or a ground of inadmissibility for non-citizens. It is critical to consult with an attorney who understands both criminal defense and immigration consequences before accepting any plea deal.
