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Elements of the Offense

To prove you guilty of this crime, the DA must prove each of the following elements beyond a reasonable doubt:

1. You unlawfully possessed a controlled substance;

2. You knew of its presence;

3. You knew of the substance’s nature or character as a controlled substance;

4. The drug was actually a controlled substance or an analog of a controlled substance; 


5. The controlled substance was in a usable amount.

Elements Explained

What’s a “usable” amount? 

A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris shouldn’t count. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

Does it matter if you don’t know which specific controlled substance you have?

No. The DA doesn’t have to prove you knew which specific controlled substance you possessed.

What if I was in a group and it’s unclear who possessed the controlled substances?

Two or more people may possess something at the same time. So the defense that the drugs were your friend’s, not yours, will not necessarily work. However, if the circumstances support your argument that the drugs really weren’t yours, then by all means fight your case. Just because you were within the vicinity of drugs doesn’t mean it’s easy to prove they belonged to you. This issue often arises from vehicle stops where drugs are found in the car.


What if the drugs weren’t actually on me?

 A person does not have to actually hold or touch something to possess it. The question is whether you had control over it or the right to control it, either personally or through another person. So if police searched your bag in the car, and it’s clear the bag belonged to you, then it’s not a defense to say the drugs weren’t actually found on your person. 

What if I have a valid prescription?

Definitely fight your case. As a matter of law, you are not guilty if you had a valid, written prescription for the substance in question. The key word here is valid meaning a legitimate doctor licensed to practice in California prescribed you the medication. A more subtle issue is if the prescription is old. But, in my opinion, good luck to any DA who tries to convince 12 jurors to unanimously convict someone for simply possessing old prescription meds. Probably at least half the jurors themselves have old medication in their medicine cabinets at home. If you raise the defense that you had a valid prescription, the DA has the burden of proving beyond a reasonable doubt that the prescription was invalid.

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