In California, the amount of time you can spend in jail or prison after a conviction for drug possession varies widely. It can be multiple decades or no time at all. Custody time ultimately hinges on five primary factors:
- the specific drug possession charges you are facing,
- the type of drug,
- how much of the drug was found,
- your criminal history, and
- any aggravating circumstances.
1. The specific charges you are facing
The biggest factor in the range of jail time that you can receive is whether the charges are for:
- simple drug possession (Health and Safety Code 11350 HS),
- possession for sale (Health and Safety Code 11351 HS), or
- drug trafficking (Health and Safety Code 11352 HS).
Depending on the drug possession charges and absent other factors, you could face no jail time at all, or up to 9 years.
Simple possession
Simple possession of a controlled substance, also known as drug possession for personal use, is California’s least severe drug offense.
Typically, it is a misdemeanor that carries up to 1 year in county jail. You may also be eligible for a drug diversion program.
However, if you have a prior conviction for a serious or violent felony, you can face 16 months, 2 years, or 3 years in jail.
Note that the possession of marijuana for personal use is legal in California.
Possession for sale
Possession with intent to sell carries more jail time for a conviction. This offense is a felony. Convictions carry 2, 3, or 4 years in jail. That jail term is for each intended sale, so it can grow very quickly.[1]
Our criminal defense lawyers have found that prosecutors tend to prove that you intended to sell the controlled substances using the following “indicators of sale”:
- the drugs were found packaged for sale,
- large quantities of the drug was found,
- you had lots of cash on hand,
- you had possession of drug selling paraphernalia, like scales, and/or
- lots of people were seen visiting you, often for brief periods of time.
Drug trafficking
Drug trafficking, known in California as selling or transporting controlled substances, is the crime of selling or furnishing a useable amount of drugs, or moving them for sale.
These are felony charges.
Convictions for a first-time offense carry 3, 4, or 5 years in jail. This increases to 3, 6, or 9 years in jail if you brought the drugs across 2 or more county lines within California.
If you have at least one prior conviction for a felony drug crime, you would face an additional and consecutive 3 years in jail for each of those prior convictions.[2]
2. The amount of drugs found
How much was found will also impact the jail sentence.
If lots of drugs were found, it will likely alter the charge from simple possession to possession with an intent to sell. This increases the potential jail time.
The jail time for convictions for either drug trafficking or possession with an intent to sell also increases if you had lots of:
- heroin,
- cocaine, and/or
- cocaine base.
You would face an additional:
- 3 years if you had more than 1 kilogram,
- 5 years for more than 4 kilograms,
- 10 years for more than 10 kilograms,
- 15 years if you had more than 20 kilograms,
- 20 years if you were caught with more than 40 kilograms, and
- 25 years if the drugs weighed more than 80 kilograms.[3]
3. The type of drug
The type of drug that was found in your possession can influence the jail time you receive in some situations.
For example, simple possession charges involving over 1 kilogram of methamphetamine carry 3 to 15 years in state prison, in addition to the typical 1-year term.[4]
Another example is the additional prison time that you would face for drug trafficking or possession for sale if you were found with at least a kilogram of:
- heroin,
- cocaine, and/or
- cocaine base.
4. Your criminal history
Certain prior convictions can lengthen your prison time for a drug possession conviction. These prior convictions are generally for:
- drug offenses,
- serious felonies, and/or
- violent felonies.
For example, the 1-year maximum sentence for simple possession increases to 3 years if you have a serious or violent felony conviction on your record.
5. Any aggravating circumstances
Certain aggravating circumstances in your arrest may increase the amount of time you spend behind bars.
For example, if you sell or transport drugs within 1,000 feet of a:
- drug treatment center, homeless shelter, or a “detox” facility, your prison time would increase by 1 year,[5] or
- school, place of worship, or anywhere that minors are regularly present, your prison time would increase by 1 or 2 years.[6]
Another aggravating circumstance would be to sell drugs to a minor under the age of 18. If you were 4 years older than the minor, your jail sentence would increase by 1, 2, or 3 years.[7]
What are the elements of the crime of drug possession?
Under California law, criminal elements are different for:
- simple drug possession,
- possession for sale, and
- drug trafficking.
For simple drug possession, the elements are that you:
- unlawfully possessed a controlled substance,
- knew of its presence,
- knew that it was a controlled substance,
- had a useable amount of it.[8]
The elements of drug possession for sale are the same, plus the element that you intended for it to be sold when you had the controlled substance.[9]
For drug trafficking, there is the additional element that you actually transported it, or sold or otherwise furnished it to someone.[10]
Note that “possession” of drugs includes:
- actual possession, where you have the drugs in your hand or on your person, and
- constructive possession, where the drugs are in a place or with a person that you control.[11]
The prosecutor has the burden of proving each element of the offense beyond a reasonable doubt. A criminal defense attorney can work to prevent this from happening.
What are illegal drugs under the Controlled Substances Act?
Drugs that are illegal to possess without a valid prescription are controlled substances. Both state and federal law have lists, referred to as Schedules, that sort controlled substances according to:
- how addictive they are and how debilitating that addiction is, and
- their medicinal value.
Schedule V drugs have medicinal use and little risk of addiction, like Tylenol with small amounts of codeine.
Schedule IV drugs have medicinal uses but can cause addiction, like Xanax or Ambien.
Schedule III have moderate risks of addiction, like ketamine.
Schedule II drugs have significant risks of addiction, but also have legitimate medical uses. Among the examples are some prescription drugs:
- cocaine,
- Vicodin,
- Oxycodone, and
Schedule I drugs are addictive and have no medicinal value. Examples include opiates and hallucinogens like:
- LSD,
- heroin,
- peyote,
- mescaline, and, under federal law,
Federal drug law uses these Schedules to determine sentencing for federal convictions. This includes for certain serious drug charges that happen in the state of California.[12]
Are there any other penalties for this California drug crime?
Convictions for drug possession in California do not just come with jail time. You could also face:
- substantial criminal fines,
- probation,
- deportation,
- community service,
- completing a drug treatment program,
- disgorgement of proceeds from any drug sales, and
- collateral consequences of having a prior drug conviction on your criminal record.
Legal References:
[1] People v. Lopez, 42 Cal. App. 5th 337 (2019).
[2] California Health and Safety Code section 11370.2 HS.
[3] California Health and Safety Code 11370.4 HS.
[4] Same.
[5] California Health and Safety Code 11380.7 HS
[6] California Health and Safety Code 11353.1 HS.
[7] California Health and Safety Code 11353.1(a)(3) HS
[8] California Criminal Jury Instructions (CALCRIM) No. 2304.
[9] CALCRIM No. 2302.
[10] CALCRIM No. 2300.
[11] CALCRIM No. 2304. See also People v. Barnes, 57 Cal.App.4th 552 (1997)
[12] 21 USC 801 et seq.
