Understanding the California Laws Relating to Prescription Drug Offenses May Help You Avoid an Arrest and/or Conviction
PRESCRIPTION DRUG OFFENSES AND PENALTIES IN
DOMENIC J LOMBARDO SAN DIEGO CRIMINAL DEFENSE LAWYER
Due in large part to the “War on Drugs” that has been going on in the United States for several decades, the laws relating to dispensing and using prescription drugs have changed considerably. Today, doctors, pharmacists, and patients must be aware of the various laws and restrictions relating to prescription drugs to ensure that they do not run afoul of them. Unfortunately, people often fail to realize that possession of a prescription drug for which they do not have a valid prescription is treated in much the same way as possession of traditional “drugs” such as marijuana, cocaine, or heroin. The days when a friend could “share” a pain pill with you are gone, replaced with laws that could land you in jail for having a single pill in your possession. Understanding the California laws relating to prescription drug offenses may help you avoid an arrest and/or conviction.
DEFINING “CONTROLLED SUBSTANCES” The United States Controlled Substances Act defines the term “controlled substances” to include both illegal drugs and prescription drugs. California Health and Safety Code, or CHSC, Sections 11350-11356.5 cover criminal offenses relating to the possession, sale, transport, distribution, and
manufacturing of controlled substances. CHSC Section 11054 provides an exhaustive list of the controlled substances referenced in Sections 1135011356.5. Numerous medications commonly prescribed by a physician are included on the controlled substance list because of their chemical makeup. Medication commonly prescribed for pain, such as Lortab or Tylenol 3, are opiate based, meaning they are a controlled substance. Sleeping pills, such as Ambien, are also classified as a controlled substance. Likewise, prescription sleeping pills such as Suprenza and Adipex make the controlled substance list.
THE CONTROLLED SUBSTANCE LIST Understanding California controlled substance laws requires a basic understanding of the controlled substance list found in CHSC Section 11054. For purposes of this article, the list can be broken down as follows:
Sub-section (b) – Opiates Sub-section (c) – Opium derivatives Sub-section (d) – Hallucinogens Sub-section (e) – Depressants Sub-section (f) --- Cocaine
POSSESSION OF A CONTROLLED SUBSTANCE IN CALIFORNIA In California, simple possession of a controlled substance found in any category except some in sub-section “e” is a felony. If convicted you face up to a year in the county jail, 16 months in prison, or a two to three year
prison sentence, depending on the specific facts of the case. You may also be placed on probation in lieu of, or in addition to, a jail sentence as well as a fine and court costs.
POSSESSION /PURCHASE WITH INTENT TO SELL California law makes possession of a controlled substance, or purchase of a controlled substance, with the intent to sell the substance a felony. If convicted, you face a prison term of two, three or four years in a state penal facility. You will also likely serve a term of parole when released as well as owe fines and costs.
TRANSPORTATION, IMPORTATION, SALE Transporting, importing, selling or furnishing a controlled substance is also a felony in California which carries a two, three, or four year prison sentence along with a period of parole, fines, and costs if convicted.
THE STATEâ€™S BURDEN IN A CONTROLLED SUBSTANCE PROSECUTION In a criminal prosecution the state always has the burden to prove that the defendant is guilty. In other words, if you are charged with a criminal
offense, you do not have to prove your innocence. For the state to prove its case, the prosecutor must prove each element of the crime. For example, if you are charged with possession of a controlled substance in California, the prosecutor must prove EACH of the following: You had the ability to use or control a controlled substance for which you had no legal right to possess. You knew or were aware of the presence of the controlled substance You knew of the substance’s nature or character as a controlled substance You had a sufficient amount of the controlled substance for it to be abused
ACTUAL VS. CONSTRUCTIVE POSSESSION One issue that often comes up in drug cases, particularly when prescription drugs are involved, is actual possession vs. constructive possession. When a defendant is found in actual possession of contraband (in this case drugs) it is much easier for the state to prove its case; however, what happens more
often is that a controlled substance is found somewhere inside a vehicle, a home, or even a purse instead of actually on the defendant. In these situations the state must rely on the concept of constructive possession. To prove that you had constructive possession of a controlled substance the state must prove that you had “intent to maintain dominion and control over the contraband”.
COMMON DEFENSES TO A CONTROLLED SUBSTANCE CHARGE If you have been arrested and charged with possession of a controlled substance only an experienced California criminal defense attorney can review the specific facts and circumstances of your case and advise you what possible defenses you may have; however, there are some common defensive strategies employed in controlled substance cases, including: Valid prescription – if you had a valid prescription for the controlled substance it is a defense; however, you must not have had a larger quantity of the drugs than what you were prescribed. No possession – if the state’s case is based on constructive possession you may be able to argue that you did not possess the controlled substance. Lack of knowledge – if, for instance, a friend gave you something for your headache and you had no idea it was a controlled substance, or your friend lent you a jacket and unknown to you his/her prescription pills were in the pocket, you may be able to avoid conviction on the basis of lack of knowledge. Momentary possession – California allows you to have momentary possession of a controlled substance if the reason for the possession is to dispose of, or destroy, the substance.
AVOIDING AN ARREST If you have been arrested and charged with a violation of one of the many California controlled substance laws, hiring an experienced California criminal defense attorney who can employ one of the many available strategies to avoid a conviction is clearly your best course of action. Avoiding an arrest in the first place, however, is preferable. Far too many innocent individuals find themselves on the wrong side of the law because they did not fully understand the laws relating to prescription medications. To avoid finding yourself in this situation, consider the following: Never accept any prescription medication from a well-meaning friend, family member or co-worker. Never offer to give someone else prescription medication of yours. Always carry your prescription medication in the prescription bottle. If you take a prescription medication on an ongoing basis, particularly if it is a narcotic, hold on to an empty prescription bottle as an “extra” in case you wish to carry only a few pills with you when you go on vacation or you wish to separate your pills for any reason. Keep prescription medication locked up where others cannot reach it. Always check the pockets when someone loans you a jacket or coat. Thoroughly search through a purse before using it if it has been put up for some time or if someone else gave it to you to ensure there are no stray pills at the bottom or in a pocket. Never agree to “hold” someone else’s medication for them in your purse, pockets, or vehicle even if it is in the proper prescription bottle. Destroy known controlled substances immediately if you are trying to prevent someone else from abusing them or you do not ever plan to take the medication yourself.
While some of these tips may seem a bit extreme, the laws relating to prescription medications warrant following them to avoid becoming entangled in the criminal justice system.
California Legislature, Health and Safety Code Section 11350-11356.5 FindLaw, Health and Safety Code Section 11054
About the Author Domenic J Lombardo Domenic J. Lombardo, (Attorney at Law) graduated from University of California, Los Angeles (U.C.L.A.), earning a B.A. in Economics-Business, before graduating with his J.D. from University of California, Hastings School of Law. He passed the California Bar Examination on the first try, and immediately began practicing as a criminal defense attorney in San Diego, California. Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public Defender from 1991 to early 1996. Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as a a sole practitioner dedicated entirely to the defense of individuals accused of crimes. And while Mr. Lombardo works as the primary attorney for all his cases, he does have a team of investigators, forensic consultants, and paralegals to call on to help achieve the best possible result in every case. When he is not working, Mr. Lombardo is an avid family man, triathlete, and world traveler. The Law Office of Domenic J Lombardo The Executive Complex 1010 Second Ave., Ste. 1820 San Diego, CA 92101 www.AttorneyLombardo.com