To qualify for this diversion program, you must have no prior drug offenses on your record, the crime you are charged with must not involve any violence or threat of violence, you must have no history of revoked probation or parole without thereafter successfully completing it, you must not have been given PC 1000 before, and you must not have any felony convictions within the past five years.
If you qualify for PC 1000, you will be given drug treatment. If you successfully complete the drug treatment, the case will be dismissed and the arrest will be deemed never to have occurred. If you fail to complete the program, you will be returned to court, a guilty plea will be entered into the records, and you will be sentenced as the judge sees fit. To see if you qualify for PC 1000 consult with an Orange County drug possession lawyer.
If you are charged with a nonviolent drug offense but don’t qualify for PC 1000, then your Orange County drug defense attorney may help you get another form of diversion—Prop 36. (Penal Code Secton 1210). In order to qualify for Prop 36, you must only be charged with nonviolent drug-related offenses and the drugs in question must be for personal use. So, for example, if you are charged with possession of drugs and a DUI, you could not qualify for this program because a DUI is not considered a drug-related offense.
If you qualify for Prop 36, you will receive 12 months of drug treatment. If you successfully complete treatment, your case will be dismissed. However, you will still have to register as a drug offender for the next seven years. If you feel diversion is right for you, call Orange County drug lawyer EJ Stopyro at (949) 559-5500.
Possession with intent to sell
Possession for sale is criminalized by Health & Safety Code Sections 11351, 11351.5, 11378, 11378.5. The elements for possession with intent to sell are identical to the elements for possession (see above) with two additional elements:
- There must be a sufficient amount of the drug to sell; and
- The DA must prove that you had a specific intent to sell the drug.
Typical evidence of intent to sell includes a large amount of the drug, that the drug is packaged in small amounts ready to sell, that the police also found a large amount of cash in your possession, pay/owe sheets showing amounts of money paid or due, scales or baggies, and messages on cell phones. If you are facing charges for possession with intent to sell then you are not eligible for either PC 1000 or Prop 36. If you are facing charges for possession with intent to sell it is important that you talk to an Orange County drug sales lawyer.
Selling, Transporting or Giving Away Drugs
The offenses of selling, transporting or giving drugs away are governed by Health & Safety Code Sections 11352 and 11379. These offenses are punishable by imprisonment for three, four or five years. If the drugs were transported from one county to a noncontiguous county the punishment can be up to nine years.
The Calfornia Court of Appeal has held that “Transportation of a controlled substance is establised by [simply] carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character… Neither this nor any other court has ever required that the length of travel exceed minimal movement.” This means that what would otherwise be a simple possession charge can be a transporting charge if you simply move the drugs, either in your car or on our person. If you are facing charges for selling, transporting or giving away drugs you need to consult with an experience Orange County drug crimes lawyer.
Manufacturing drugs by chemical extraction is criminalized by Haelth & Safety Code Section 11379.6. This statute is aimed at PCP and methamphetamine labs. Punishment is three, five or seven years of imprisonment and a $50,000.00 fine. Also, anyone who participates or offers to participate in manufacturing these drugs is punished by three, four or five years of imprisonment.
In order to be convicted, the police do not need to find the finished product—PCP or methamphetamine. It is enough that the manufacturing process be under way. Even the possession of certain chemicals is illegal. For example possession of hydriotic acid is a crime. And although many chemicals can be possessed for reasons that have nothing to do with drug manufacturing, the Legislature has enacted statutes that establish a legal presumption that if a person possesses certain chemicals, they intend to manufacture illegal drugs. If you are charged with manufacturing drugs you need to consult with an Orange County drug attorney.
Under the Influence of Drugs
Health & Safety Code Section 11550 makes it a crime to simply be under the influence of most illegal drugs. (excluding marijuana) It is not necessary that you be impaired to any appreciable degree, it is enough if you are under the influence in any detectable manner. The typical arrest is for being under the influence of cocaine, heroin, methamphetamine and PCP.
This crime is a misdemeanor punishable by up to one year in the Orange County jail. There is a mandatory minimum punishment of 90 days in jail. The only way around the 90 day minimum is if you qualify for diversion–PC 1000 or Prop 36.
Possession of Drug Paraphernalia
Health and Safety Code Section 11364 deals with the possession of drug paraphernalia. This section makes it illegal to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a specified controlled substance. It is not illegal to possess an instrument for smoking marijuana.
Possession of drug paraphernalia is a misdemeanor punishable by up to six months in jail and/or a $1,000.00 fine. However, this offense is divertible—you can get PC 1000 or Prop 36 if you qualify. If you are charged with possessing drug paraphernalia you should consult with an Orange County drug paraphernalia attorney.
When you were released from custody you were either given a citation or you signed a promise to
appear. This will have the date and the court location where you must
appear. At your first court appearance, called an arraignment, the judge
tells you and your lawyer exactly what you are being charged with and your
criminal defense lawyer receives a copy of the police report and complaint. If you are only charged with a misdemeanor your lawyer can appear in your place.
First Court Appearance (Arraignment)
At this early stage a plea of “not guilty” is almost always entered and another court date, called a “pretrial conference” is set for several weeks later. This gives your drug crimes attorney valuable time to review the police report, witness reports, forensics reports, and other documents in your case. Your drug crimes lawyer will interview witnesses and conduct legal research on any of the various legal issues that may arise in your case. Hiring a drug crime attorney with the intelligence and skill to spot these legal issues can make all the difference in your case.
A typical case requires three or four pretrial conferences for your drug attorney to review all the evidence the DA intends to use against you, to research legal precedent supporting suppression issues, and to file and litigate any suppression motion in your case. Your case may also require your attorney to visit alleged crime scenes and consult with experts.
If there are no suppression issues, your attorney must then determine if the DA can convict you with the evidence they have. Can the DA prove the drugs were yours? That you had actual or constructive possession of them? Can the DA prove you had knowledge that the substance was an illegal drug? Can the DA prove that you were actually selling or intended to sell drugs? (This can be especially tough for the DA if their crimnal informant wont testify.) If you are facing felony charges you have the right to a “preliminary hearing” at which the DA must produce enough evidence against you to justify prosecuting you.
If the evidence against you appears strong, your drug defense attorney must then determine if you have a possible defense, such as entrapment, mistake of fact, mistake of law or necessity. If you don’t have a defense, it falls on your drug attorney to negotiate the best possible deal for you. A skilled drug defense attorney must be prepared to highlight the strengths of your case so that the DA would rather avoid a trial rather than risk wasting time and money on a potential losing case . Your drug crime attorney must also present you to the judge and DA in the most favorable light. Often, the only window into your personal life is through your attorney. If your drug defense attonrey is effective at doing these things, you’re likely to get the best possible offer from the DA or the Judge.
Finally, if jail time is unavoidable, a capable drug defense lawyer will thoroughally explore sentencing options to keep you out of jail. These alternatives include home confinement where you serve your jail sentence at home with an electronic bracelet, leaving only for work or for necessities of life. Other options include community service or doing labor for Caltrans. If jail is unavoidable a judge can allow you to serve your time in a “private” jail, (“pay and stay”), where you are released for up to 12 hours a day to go to work. Another option is to serve your jail time on the weekends–checking in Friday night and being released Sunday night. A competent drug defense attorney will zealously push to get you an alternative sentencing option.
If you do have a defense or if the DA’s evidence is not very strong, and if you don’t want to accept whatever the DA is offering, your case will be set for trial. Very few cases make it to trial; maybe one in fifteen. At trial, the DA presents whatever admissible evidence they have against you to twelve regular people. In order to convict you the Prosecutor must prove every element of every charge against you by proof beyond a reasonable doubt, the highest evidentiary burden in law. Your criminal defense attorney must be able to persuasively point out the weaknesses of the prosecutor’s case and deftly present your defense, if you have one.
If even a single juror finds that the prosecutor hasn’t met this heavy burden, then you can’t be convicted. (Hung jury) If all twelve jurors agree that the prosecutor hasn’t met its burden of proof, then a verdict of not guilty must be rendered.