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Possession for Sale of Controlled Substance

(Health & Safety Code, §§ 11351, 11351.5, 11378, 11378.5)


To prove you guilty of this crime, the DA must prove:


  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. When you possessed the controlled substance, you intended to sell it (or have someone else sell it);

  5. The substance was, in fact, a controlled substance (or an analog of that substance)

  6. The controlled substance was in a usable amount.


If the case gets technical about whether the substance was, in fact, an analog of a specified controlled substance, the DA will have show:

  1. It has the chemical structure substantially similar to the structure of a controlled substance or

  2. has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to or greater than the effect of a controlled substance.


What does selling mean?

It means exchanging for money, services, or anything of value.


What's a usable amount mean?

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


Does the DA have to prove you knew which specific controlled substance you possessed?



What if you weren't alone? Can more than one person possess something at the same time?

Two or more people may possess something at the same time. So, technically, just because you were with a friend or someone else does not mean the DA can't pin you to the drugs.



What if the drugs weren't found on you directly -- they were in a bag or something like that?

A person doesn’t have to actually hold or touch something to possess it. It is enough if the person has control over it (or the right to control it), either personally or through another person.


What if you only agreed to buy? Does that mean you have control over that substance?


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