Drug trafficking is not officially a legal term. It’s generally used to speak about people who are engaged in sales and distribution operations on a relatively large scale, and who bring drugs in from other countries and distribute them over a wide area. Ultimately, it still boils down to sales and distribution.
A possession charge is determined by looking at whether or not somebody had dominion and control over the drugs, which doesn’t mean that they had to have bought and paid for the drugs. It simply means that the drugs were in their presence, whether that means they were hidden in a part of their house or under their car seat.
There are two different types of possession: actual possession and constructive possession. Actual possession means possession of drugs on your person. Constructive possession means that the surrounding circumstances indicated that you had or intended to have some control over drugs.
A sale would mean exchanging a drug for something of value, which doesn’t have to be money; it could be a favor or anything of value. In California, there is no differing penalty between sale, distribution and providing a drug to somebody else. They are often bundled into the same law and are dealt with equally. The circumstances just indicate the specific difference between selling, distributing and providing.
The Food & Drug Administration and state and local agencies have designated various schedules for controlled substances. Most of those controlled substances are available by prescription and can be possessed and used according to a doctor’s recommendation. There are other controlled substances that are simply illegal for all purposes. Generally, those have been shown to have no medical benefit and are subject to abuse. There are controlled substances that have been federally designated as Schedule I controlled substances, and they’ve essentially been copied at the state level almost everywhere. One exception to this is marijuana, which is a Schedule I narcotic at the federal level. Under federal law, marijuana is legally equivalent to heroin or cocaine. But many states, including California, have legalized its cultivation, sale, possession and use for medical and recreational purposes; notwithstanding, it is still illegal under federal law.
A drug offense is determined to be either a misdemeanor or a felony offense based on the type of drug involved and whether it was possessed for personal use or for sale. Almost all marijuana charges are misdemeanors because of a voter initiative in 2016. Unless it’s a large quantity of marijuana that is being transported out of the state, most of the time you are going to see it charged as a misdemeanor. If you are getting on a plane and taking a large quantity of marijuana out of the state of California, then you are likely going to be looking at a felony. Most other drug offenses are typically charged as misdemeanors if they are simple possession or under the influence offenses whether it’s cocaine, xanax, methamphetamines, or the like. But if drugs are possessed or transported for sale, then they’re generally felony offenses. As I mentioned before, there is a manufacturing offense involving the use of chemicals and other materials to make certain drugs like methamphetamine, and that is almost always a felony offense.
There are two main types of drug offense cases: possession offenses and sales-related offenses. Simple possession can be for personal use and then there’s possession for the purposes of sale. There are charges that are related to being under the influence of certain types of drugs, and those related to other offenses, like driving under the influence. Our firm handles all of these common drug offenses.
Whether possession is charged as a personal use offense or sales depends on the circumstances. For instance, the quantity of the drugs found, the presence of other indicia of sale (scales, baggies, etc.), how the controlled substance was packaged, whether the person had large amounts of money on them, and whether or not there were any text messages showing intent to sell. The surrounding circumstances determine whether a possession case is for personal use, a sale-related drug transaction or drug trafficking. Sometimes we also come across manufacturing cases in which a person is caught with materials or chemicals that indicate involvement with the manufacturing of certain drugs.
There is a pre-trial and pre-plea drug court option, which are collaborative. This program is part of a collaborative court where the DA, judge, defense attorney and defendant are all on the same page in regard to the defendant’s plan to participate in some sort of treatment and report to court consistently in order to show their progress. After that time has passed, their charges will be dismissed and they will be eligible to have that record of arrest sealed and ultimately destroyed.
The timeline for a drug-related case in California will depend on a few factors, including whether it is a misdemeanor or a felony case and whether or not the person is in custody. As a general rule, I would say that most misdemeanor cases take anywhere from three to six months on average. A felony case may take anywhere from six to 12 months or more. If a person is out of custody, the cases usually last longer than if a person is in custody. That’s primarily because when a person is in custody, they don’t want to spend more time in there than necessary, but that also depends on whether or not they waive their right to a speedy trial. If a person is out of custody but they have a serious drug offense, they could be looking at the county jail or state prison time. Oftentimes, that client may just want to take their time and ensure that the case is fully prepared and investigated because their liberty is at stake. So, the timeline varies based on several factors but primarily depends on the seriousness of the offense.
Whether or not a passenger in someone’s vehicle or a visitor in someone’s house will be charged with a drug offense depends on the circumstances, like what they were doing there, where the drugs were found and what common statements they made to the police. It comes down to a dominion and control issue that was mentioned previously – What’s implied by the circumstances? Did they have access to the drugs? If they were the passenger in the vehicle, were the drugs found under the passenger seat? As a guest in a home, were the drugs found in the room that they were staying in or in a backpack that belonged to them? If someone is in a place where drugs are found, then they can receive a drug-related charge based on actual or constructive possession.
Because cars are mobile, police are given wider latitude for searching a car based upon probable cause. If they have lawfully stopped the car and they see or smell things that they believe indicate the presence of drugs, then they can search. They are not required to have a warrant, and they’ll often use a police dog to confirm their suspicions before searching. However, the US Supreme Court has ruled that the police can’t make a person wait for a dog to arrive for longer than it would take them to write a ticket unless they have enough suspicion to do so.
A home has special considerations because there is a higher level of an expectation of privacy. A search warrant is required for home searches except when there are exigent circumstances. Exigent circumstances mean that there is some sort of emergency going on inside a home. For example, someone could be getting hurt or destroying evidence. If there are exigent circumstances, then the police may be allowed to enter. However, there is a difference between entering a home and actually searching a home. If the police enter a home based on one reason and then they find a different reason to search further, they would need to obtain a warrant. They would not be allowed to go beyond the scope of the initial entry into the home or what’s in plain view. This is in accordance with the Fourth Amendment protections, which say that no warrant should be issued without probable cause, and that all warrants must describe the place to be searched and the person or things to be seized.
California has a law against possessing items for the use of legal drugs, which is what drug paraphernalia is. The most common types of drug paraphernalia are glass pipes and meth pipes. There is a law that prevents having that paraphernalia on your person or in your home because it’s indicative of actual use of a controlled substance.