Possession of a Controlled Substance for Sale is the unlawful possession of a wide variety of illegal drugs or prescription drugs without a prescription with the purpose or intent of selling them. The following are some examples of controlled substances: cocaine, crack cocaine, heroin, and prescription drugs such as hydrocodone.
A Defendant does not need to be caught in the act of selling to be charged with possession for sale, and ultimately the intent to sell may be inferred by facts such as the amount of substance possessed, the presence of cash, the presence of packaging materials such as baggies, or other possible facts that may lead to a conclusion that the substance was not possessed just for personal use.
Elements of a Possession of a Controlled Substance for Sale charge
The prosecution must prove the following facts to convict a defendant of Possession of a Controlled Substance for Sale:
- Control – Defendant had physical “control” or power to control a controlled substance
- Knowledge – Defendant knew the controlled substance was present, even if he did not know precisely which controlled substance was present
- Quantity – Defendant possessed an amount of the controlled substance that was enough to infer that it was for sale – a very small quantity suggests that it was for personal use and not for sale
- Intent to Sell – Defendant possessed or purchased the controlled substance with the specific intent to sell it or for someone else to sell it. Evidence of intent to sell may include the quantity of the drug; how it is packaged or the existence of packaging materials in the same location; the amount of money found on defendant or near the drugs; and the absence of paraphernalia indicating personal use.
Punishments for Possession of a Controlled Substance for Sale
- Possession of a Controlled Substance for Sale is a felony punishable by two, three or four years in state prison.
- Drug treatment under Penal Code section 1000 or Proposition 36 are not available alternatives to incarceration when the charge is possession for sale.
Defenses to a Possession of a Controlled Substance for Sale charge
Potential defenses to a Possession of a Controlled Substance for Sale charge will depend on the facts of the case, but may include:
- Lack of Intent to Sell – Insufficient direct or indirect evidence exists to show that the defendant intended to sell the controlled substance
- Entrapment – Under California law, entrapment occurs when a “normally law abiding person” is induced to commit a crime, in this case possession of a controlled substance for sale, that he otherwise would not have committed
- Unlawful Search and Seizure – Law enforcement found the controlled substance as part of an unlawful search or seizure of Defendant’s person or premises under his control
- Lack of Knowledge – Defendant was unaware that he possessed the controlled substance: for example, another person placed the substance in Defendant’s bedroom, vehicle or locker, etc.
Lack of possession – Defendant did not possess the controlled substance: for example, defendant was only present while other people used a controlled substance or Defendant only held the controlled substance for use by another person