Facing a drug crime can be an overwhelming experience, especially when facing a felony criminal charge. Specific factors can make a crime a felony, resulting in severe penalties, including lengthy incarceration and hefty fines. Knowing these factors can offer you vital insights for navigating the complex criminal justice system.

Your Intent to Sell Drugs

The prosecutor can prove intent to commit an offense with either circumstantial or direct evidence.  Establishing that you planned to violate the law is a key aspect of your drug criminal case, and the prosecutor must prove it beyond a reasonable doubt.

Whether you wanted to sell narcotics or possessed them for your own use is not always obvious. In the absence of your voluntary confession to the offense, the prosecutor can deduce the intent through circumstantial evidence. Circumstantial evidence suggests that you planned to commit the offense, but requires an inference of presumption.

Some of the circumstantial evidence that the prosecution can use to prove you intended to sell drugs includes the following:

The Amount of Your Controlled Substance

If you possessed more drugs than what an average individual would take, the prosecutor might claim that you owned the controlled substances for sale.

A gap in the argument is that most habitual drug users stock up whenever they have the financial means to do so.

Your Drug Packaging

If you have packaged your drugs in many different balloons, bundles, bindles, or baggies, the law enforcers will argue that you intended to sell the narcotics. The police will also suspect you intend to sell drugs if they discover you with many packaging materials.

You have the Indica of Sale, including the Drug Paraphernalia

Possessing drug paraphernalia is an offense on its own per HS 11364, and it can hurt or help your criminal case.

The existence of paraphernalia such as pipes and syringes shows use. You can use their presence to prove your drugs were for personal use.

Nonetheless, if law enforcers find you possessing a lot of money in small denominations, measuring equipment, weighing scales, or other equipment used to package, separate, or dilute drugs, they could argue that you intended to sell the drugs.

The police can argue you intended to sell the controlled substances because many people visited you for short durations.

You were Intoxicated

If the defendant was intoxicated due to drugs during their arrest, it could indicate that the possession was for their own use instead of the intent to sell.

Please note that most drug dealers are also users; therefore, the evidence might not be conclusive.

Nature and Quality of Controlled Substances

Drugs, certain chemicals, and substances are categorized into five schedules or groups depending on their dependency potential or acceptable medical use. Abuse rate is the primary determining factor in drug scheduling. For instance, Schedule 1 drugs have the highest potential for abuse and the potential to result in physical or psychological dependence.

  • Schedule 1 Controlled substances—These are drugs without any accepted medical use and with high potential for abuse. They include heroin, ecstasy, peyote, lysergic acid diethylamide, and methaqualone.
  • Schedule II —These controlled substances have a high potential for abuse and may lead to serious physical or psychological dependence. Its examples include Ritalin, adderall, dexedrine, fentanyl, oxycodone, methamphetamine, methadone, and cocaine.
  • Schedule III controlled substances—These drugs have lower drug abuse potential than Schedule II and I. The drugs have a moderate or low potential for psychological or physical dependency. Its examples include products with less than 90 milligrams of codeine per dosage, testosterone, anabolic steroids, and ketamine.
  • Schedule IV—These controlled substances are less likely to cause abuse and dependency. Its examples include Taiwan, Tramadol, Soma, Xanax, Darvon, and Valium.
  • Schedule V—These drugs have a lower drug abuse potential than Schedule IV and are prepared in limited quantities of specific narcotics. The drugs are used for analgesic, antitussive, and antidiarrheal purposes. These drugs include Motofen, Parapectin, and Lyrica.

The type of narcotic you had at the time of your arrest will determine the criminal charge the prosecution will file against you. For instance, possessing a schedule I controlled substance will lead to an automatic felony charge irrespective of the quantity you possessed. 

If the drug you possessed were marijuana, the amount you possessed would determine whether the criminal charge is a misdemeanor or a felony. The law allows persons above 21 to consume, possess, and purchase up to 28.5 grams of cannabis in a private home or other certified establishment for bhang consumption. Simple possession of cannabis is a misdemeanor. Nonetheless, if the possession exceeds the legal limit, it could indicate you intend to distribute or sell it, making the crime a felony.

It is also a felony to cultivate at least six plants of marijuana, and you

  • Have a serious violent felony on your criminal record
  • Have at least two previous HS 11358 convictions
  • Broke specific environmental laws in the cultivation activities
  • Are a registered sex offender

Possessing Materials to Manufacture Methamphetamine

To prove you had materials to manufacture meth, the prosecutor must prove that:

  • You had specific chemical essentials to manufacture meth or its analog
  • When you possessed these chemicals, you planned to use them to manufacture meth or its analog

In this context, possession includes simple possession, which is when you have essential chemicals to make meth on your person. You can also possess the chemicals even if you have not carried or touched them. It holds when you have control over the material or the entitlement to control it, either via another person or personally.

You do not have to be successful in manufacturing the narcotic to be found guilty.

Manufacturing Drugs

To be convicted of manufacturing controlled substances, the prosecutor must prove that:

  • You produced, compounded, manufactured a narcotic or offered to act so
  • You knew the substance was a controlled substance.

Please note that the district attorney does not need to prove that you were aware of the specific controlled substance you were making.

Additionally, you do not have to complete the process of making the narcotic. Instead, the prosecution should establish the following:

  • You knowingly engaged in the process of narcotic production
  • The engagement was at the initial or intermediate stages of the process

Manufacturing drugs is a felony, carrying the following potential penalties:

  • Up to fifty thousand dollars in fines
  • Incarceration of three, five, or seven years in state prison

Aggravating factors that could cause the court to impose a sentence on the higher end of the penalty range are as follows:

  • The quantity of narcotics was huge
  • A child below 16 was living in the space where you manufactured the narcotics
  • You were previously convicted or arrested for specific drug crimes
  • A person died or was severely injured

Presence of Aggravating Factors

If there exist aggravating circumstances or factors, the prosecution might file felony charges even when your case would be a misdemeanor. An aggravating factor is a circumstance surrounding your offense that is enough to increase its severity and potential penalties.

These aggravating factors are as follows:

  • Causing death or injury to another person during the commission of a drug crime
  • Impact of a prior conviction—Your previous conviction can influence how judges and prosecutors view your current criminal charge. Judges consider the nature and severity of your previous crime, its relationship with your new charges, and the time that has passed since your conviction when imposing stricter conditions or harsher penalties during sentencing. The principle of recidivism holds that a repeat offender is more likely to reoffend.

Committing a Drug Crime Near a School or Protected Area

Per Title 21 U.S. Code 860, a conviction for possessing a controlled substance near a school or college results in severe enhancements on top of regular penalties.

Under this law, protected areas or zones refer to the following:

  • 1,000 feet of any private or public elementary, high school, college, or tertiary education institution.
  • 1,000 feet of recreational facilities or spaces put up for children
  • 1,000 feet of any public housing authority
  • 100 feet of any public youth facilities, including video arcades or swimming pools

Enhanced Penalties

Here are the sentencing enhancements:

A first-time violation of Title 21 U.S. Code 860 is punishable by:

  • Twice the maximum sentence — When found guilty of this drug crime, you will receive twice the maximum incarceration.
  • Mandatory minimum incarceration — The regulation imposes a minimum sentence of 12 months in prison, even when the mitigating factors would allow probation or a lesser sentence.
  • You will pay twice the maximum fine amount if you are found guilty.

Under U.S. Code 860, the penalties increase significantly if you have a prior conviction as follows:

  • The minimum incarceration duration is increased to three years to impact the nature of the crime.
  • Based on your criminal history and the severity of the crime, the judge may impose a life sentence.
  • The court will triple your mandatory supervision and monetary penalties after your release, further increasing the punishment.

Possessing a Controlled Substance While Armed with a Firearm

Here are the elements the prosecution team must prove to convict you of violating the Health and Safety Code 11370.1 HS:

  • You had a usable quantity of a controlled substance
  • You were aware of its existence
  • You understood the nature of the substance to be a controlled drug or substance
  • The substance was either heroin, cocaine, fentanyl, methamphetamine, a crystalline substance ( a liquid substance or a plant-based material containing phencyclidine or PCP), or a hand-crafted cigarette with PCP
  • During your arrest for possession, you had a loaded, operable gun for immediate defensive and offensive use.
  • You understood you had the gun ready for immediate defensive and offensive use

The law considers you armed with a loaded, operable firearm if you knowingly had at least one available for immediate defensive or offensive use. It is not necessary that you hold the firearm to be armed.

 A violation of HS Code 11370.1 HS is a felony carrying a punishment of:

  • Two (2), three (3), or four (4) years in prison
  • A maximum fine of $10,000

Once you are found guilty, you become disqualified from drug diversion per Prop 36 or 1000PC. Nevertheless, you might qualify for formal felony probation.

If the judge grants you felony probation, you will complete a one-year sentence in county jail. You will also be subject to court supervision for 36 to 60 months, under conditions that include the following:

  • Fine payment
  • Drug testing
  • Drug treatment and counseling
  • Check-ins with a probationary official
  • Community service, including roadside work
  • Keeping off drugs or breaking other laws
  • Body or premise searches, even without a warrant
  • Any other reasonable conditions imposed by the court

Violating one of these conditions could lead the judge to revoke your probation and incarcerate you.

Administering Drugs to Commit a Felony

PC 222 makes it a crime to administer narcotics to somebody else so that the person can commit a felony crime.

The administered drugs banned in PC 222 include the following:

  • Ether
  • Any controlled substance
  • Any intoxicating agent
  • Any anesthetic
  • Chloroform
  • Laudanum

The crime is a felony punishable by sixteen months, two (2) years, or three (3) years in state prison.

Please note that you can be found guilty of violating PC 222 even if the individual did not succeed in committing the intended felony. 

Contact Competent Legal Representation Near Me 

A felony drug crime in Los Angeles is a severe crime with severe penalties such as lengthy incarceration,  heavy fines, and life-altering consequences. Drug crimes are classified as felonies based on factors such as the nature of the crime, whether you used a firearm, and the vulnerability of minor children. Fighting a felony drug crime can be daunting and requires aggressive legal representation.

The Law Office of Sara L. Caplan will help you understand the charges, potential penalties, and defense options, enabling you to make informed decisions to protect your freedom and future. Please contact our office at 310-550-5877 to schedule your free case review.