PRESCRIPTION DRUG OFFENSES AND PENALTIES

IN CALIFORNIA

Understanding the California Laws Relating to

Prescription Drug Offenses May Help You

Avoid an Arrest and/or Conviction

DOMENIC J LOMBARDO SAN DIEGO CRIMINAL DEFENSE LAWYER

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Due in large part to the “War on Drugs” that has been going on in the

United States for several decades, the laws relating to dispensing and using

prescription drugs have changed considerably. Today, doctors,

pharmacists, and patients must be aware of the various laws and

restrictions relating to prescription drugs to ensure that they do not run

afoul of them. Unfortunately, people often fail to realize that possession of a

prescription drug for which they do not have a valid prescription is treated

in much the same way as possession of traditional “drugs” such as

marijuana, cocaine, or heroin. The days when a friend could “share” a pain

pill with you are gone, replaced with laws that could land you in jail for

having a single pill in your possession. Understanding the California laws

relating to prescription drug offenses may help you avoid an arrest and/or

conviction.

DEFINING “CONTROLLED SUBSTANCES”

The United States Controlled Substances Act defines the term “controlled

substances” to include both illegal drugs and prescription drugs. California

Health and Safety Code, or CHSC, Sections 11350-11356.5 cover criminal

offenses relating to the possession, sale, transport, distribution, and

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manufacturing of controlled substances. CHSC Section 11054 provides an

exhaustive list of the controlled substances referenced in Sections 11350-

11356.5. Numerous medications commonly prescribed by a physician are

included on the controlled substance list because of their chemical make-

up. Medication commonly prescribed for pain, such as Lortab or Tylenol 3,

are opiate based, meaning they are a controlled substance. Sleeping pills,

such as Ambien, are also classified as a controlled substance. Likewise,

prescription sleeping pills such as Suprenza and Adipex make the

controlled substance list.

THE CONTROLLED SUBSTANCE LIST

Understanding California controlled substance laws requires a basic

understanding of the controlled substance list found in CHSC Section

11054. For purposes of this article, the list can be broken down as follows:

Sub-section (b) – Opiates

Sub-section (c) – Opium derivatives

Sub-section (d) – Hallucinogens

Sub-section (e) – Depressants

Sub-section (f) --- Cocaine

POSSESSION OF A CONTROLLED SUBSTANCE IN

CALIFORNIA

In California, simple possession of a controlled substance found in any

category except some in sub-section “e” is a felony. If convicted you face up

to a year in the county jail, 16 months in prison, or a two to three year

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prison sentence, depending on the specific facts of the case. You may also

be placed on probation in lieu of, or in addition to, a jail sentence as well as

a fine and court costs.

POSSESSION /PURCHASE WITH INTENT TO

SELL

California law makes possession of a

controlled substance, or purchase of a

controlled substance, with the intent

to sell the substance a felony. If

convicted, you face a prison term of

two, three or four years in a state

penal facility. You will also likely serve

a term of parole when released as well

as owe fines and costs.

TRANSPORTATION, IMPORTATION, SALE

Transporting, importing, selling or furnishing a controlled substance is also

a felony in California which carries a two, three, or four year prison

sentence along with a period of parole, fines, and costs if convicted.

THE STATE’S BURDEN IN A CONTROLLED

SUBSTANCE PROSECUTION

In a criminal prosecution the state always has the burden to prove that the

defendant is guilty. In other words, if you are charged with a criminal

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offense, you do not have to prove your innocence. For the state to prove its

case, the prosecutor must prove each element of the crime. For example, if

you are charged with possession of a controlled substance in California, the

prosecutor must prove EACH of the following:

You had the ability to use or control a controlled substance for

which you had no legal right to possess.

You knew or were aware of the presence of the controlled

substance

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

substance

You had a sufficient amount of the controlled substance for it to be

abused

ACTUAL VS. CONSTRUCTIVE POSSESSION

One issue that often comes up in drug cases, particularly when prescription

drugs are involved, is actual possession vs. constructive possession. When a

defendant is found in actual possession of contraband (in this case drugs) it

is much easier for the state to prove its case; however, what happens more

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often is that a controlled substance is found somewhere inside a vehicle, a

home, or even a purse instead of actually on the defendant. In these

situations the state must rely on the concept of constructive possession. To

prove that you had constructive possession of a controlled substance the

state must prove that you had “intent to maintain dominion and control

over the contraband”.

COMMON DEFENSES TO A CONTROLLED

SUBSTANCE CHARGE

If you have been arrested and charged with possession of a controlled

substance only an experienced California criminal defense attorney can

review the specific facts and circumstances of your case and advise you

what possible defenses you may have; however, there are some common

defensive strategies employed in controlled substance cases, including:

Valid prescription – if you had a valid prescription for the

controlled substance it is a defense; however, you must not have had

a larger quantity of the drugs than what you were prescribed.

No possession – if the state’s case is based on constructive

possession you may be able to argue that you did not possess the

controlled substance.

Lack of knowledge – if, for instance, a friend gave you something

for your headache and you had no idea it was a controlled substance,

or your friend lent you a jacket and unknown to you his/her

prescription pills were in the pocket, you may be able to avoid

conviction on the basis of lack of knowledge.

Momentary possession – California allows you to have

momentary possession of a controlled substance if the reason for the

possession is to dispose of, or destroy, the substance.

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AVOIDING AN ARREST

If you have been arrested and charged with a violation of one of the many

California controlled substance laws, hiring an experienced California

criminal defense attorney who can employ one of the many available

strategies to avoid a conviction is clearly your best course of action.

Avoiding an arrest in the first place, however, is preferable. Far too many

innocent individuals find themselves on the wrong side of the law because

they did not fully understand the laws relating to prescription medications.

To avoid finding yourself in this situation, consider the following:

Never accept any prescription medication from a well-meaning

friend, family member or co-worker.

Never offer to give someone else prescription medication of yours.

Always carry your prescription medication in the prescription bottle.

If you take a prescription medication on an ongoing basis,

particularly if it is a narcotic, hold on to an empty prescription bottle

as an “extra” in case you wish to carry only a few pills with you when

you go on vacation or you wish to separate your pills for any reason.

Keep prescription medication locked up where others cannot reach it.

Always check the pockets when someone loans you a jacket or coat.

Thoroughly search through a purse before using it if it has been put

up for some time or if someone else gave it to you to ensure there are

no stray pills at the bottom or in a pocket.

Never agree to “hold” someone else’s medication for them in your

purse, pockets, or vehicle even if it is in the proper prescription bottle.

Destroy known controlled substances immediately if you are trying to

prevent someone else from abusing them or you do not ever plan to

take the medication yourself.

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While some of these tips may seem a bit extreme, the laws relating to

prescription medications warrant following them to avoid becoming

entangled in the criminal justice system.

California Legislature, Health and Safety Code Section 11350-11356.5

FindLaw, Health and Safety Code Section 11054

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About the Author

Domenic J Lombardo

Domenic J. Lombardo, (Attorney at Law)

graduated from University of California,

Los Angeles (U.C.L.A.), earning a B.A. in

Economics-Business, before graduating

with his J.D. from University of California,

Hastings School of Law. He passed the

California Bar Examination on the first

try, and immediately began practicing as a

criminal defense attorney in San Diego,

California.

Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public

Defender from 1991 to early 1996.

Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as a a sole

practitioner dedicated entirely to the defense of individuals accused of crimes. And

while Mr. Lombardo works as the primary attorney for all his cases, he does have a

team of investigators, forensic consultants, and paralegals to call on to help achieve

the best possible result in every case.

When he is not working, Mr. Lombardo is an avid family man, triathlete, and world

traveler.

The Law Office of Domenic J Lombardo

The Executive Complex 1010 Second Ave., Ste. 1820

San Diego, CA 92101

www.AttorneyLombardo.com