Possession of Prescription Drugs Not Prescribed to You California – What Can Happen?

Under California Health & Safety Code 11350a, a prosecutor can charge you with possession of a controlled substance if you get caught with certain prescription drugs and don’t have a lawful prescription. A valid prescription, however, would be an effective defense to these charges.

Possession of a controlled substance is typically a misdemeanor offense punishable by up to one year in county jail. But depending on the facts of the case and your criminal record, you could get placed in a drug diversion program rather than face jail time.

Common prescription medications that lead to unlawful possession charges include:

• hydrocodone (Vicodin),
• oxycodone (Oxycontin),
• ketamine,
• Valium,
• Xanax, and
• codeine.

1. What happens if I have no prescription?

Under California law, it is a drug crime if you possess a prescription drug without a valid prescription.

The pertinent statute on the matter is Health and Safety Code Section 11350a, which sets forth the crime of simple possession of a controlled substance.

For you to be convicted of violating HS 11350a in California, prosecutors would need to prove beyond a reasonable doubt the following elements of the jury instructions:

1. you possessed a controlled substance,
2. you knew of its presence,
3. you knew of the substance’s character or nature as a controlled substance, and
4. the controlled substance was in a usable amount.¹

Note that a controlled substance is a drug or chemical that is regulated by the government under the United States Controlled Substances Act. Examples include such illegal drugs as:

• cocaine,
• heroin,
• LSD, and
• methamphetamine.

For purposes of this offense, a controlled substance also includes prescription drugs.

2. What if I have a lawful prescription?

You are exempt from an unlawful drug possession charge if you have a valid prescription for a drug.

The State of California says that you are not guilty of a prescription drug crime if you have a written prescription for a drug from a medical professional, like a:

• physician,
• dentist,
• podiatrist, or
• veterinarian.²

Note that a prosecutor bears the burden of showing that you did not have a proper prescription for a substance.³

3. What is “illegal possession”?

California law typically says that you possess something if you have either:

• actual possession of an item, or
• constructive possession of it.

“Actual possession” is when you hold a substance or have immediate access to it (as when a drug is in a bag that you are carrying).⁴

“Constructive possession” is when you do not have immediate access to a substance, but you have control of it or the right to control it. An example is when a drug is in your house or car.⁵

Note as well that two or more people can share either actual or constructive possession of certain drugs. This is known as “joint” possession.⁶

4. What is a usable amount under HS 11350a?

A “usable amount” under the law is an amount of the drug that is enough to be used by someone as a controlled substance.⁷

Useless traces (or debris) are not usable amounts of drugs. On the other hand, a usable amount does not have to be enough, in either amount or strength, to intoxicate the user.⁸

5. Other Prescription Drug Offenses

Outside of the possession of prescription drugs, a common prescription drug crime relates to prescription drug fraud, which can be committed by either patients or doctors.

Patients commit the offense by doctor shopping, or by obtaining or attempting to obtain a prescription for a controlled substance through either:

• fraud,
• deceit, or
• misrepresentation.⁹

Doctors commit the offense when they write prescriptions for controlled substances that are not issued:

• for legitimate medical purposes, and/or
• in the usual course of their professional practice.¹⁰

6. A Criminal Defense Attorney Can Help

It is critical that you consult with a criminal defense lawyer if you are facing drug charges.

A lawyer can assist by:

• calling upon a defense strategy to challenge a charge,
• helping to dismiss certain evidence in a case (if, for example, law enforcement conducted an unlawful search and seizure), and/or
• minimizing the penalties for a conviction (for example, by helping a client enter a drug treatment program for misdemeanor charges rather than go to jail).

Note that most defense attorneys and law firms provide free consultations. This means you can receive legal advice at no charge.

Further, your communications with a lawyer are protected by the attorney-client relationship. This protection means a lawyer cannot disclose your confidences without first getting your consent.

Additional Reading

For more information, see these scholarly articles:

• Role of Litigation in the Fight against Prescription Drug Abuse – West Virginia Law Review.
• Doctoring Prescriptions: Federal Barriers to Combating Prescription Drug Fraud against On-Line Pharmacies in Washington – Washington Law Review.
• The Pharmacist’s Responsibility to Evaluate Suspicions Prescriptions – Food Drug Cosmetic Law Journal.
• Prescription Opioid Forgery: Reporting to Law Enforcement and Protection of Medical Information – Pain Medicine.
• What you can do about forged prescriptions – Medical Chronicle.