FELONY DRUG CHARGES GUIDE

Felony drug charges can be filed in a California state court or in federal court. The charges that might be filed are similar, but California law differs from federal law in key respects. This guide explains the felony drug charges that are most commonly filed in state or federal court against people who are accused of drug crimes in California.

Controlled Substances

Felony drug crimes involve drugs that are classified as controlled substances. Prescription drugs as well as drugs that cannot legally be sold or prescribed are controlled substances.

The federal government and California have developed controlled substance “schedules” that list hundreds of regulated drugs. Most of them are rarely involved in criminal prosecutions. The controlled substances that commonly lead to felony charges include:

• Cocaine and crack
• Methamphetamine
• Heroin
• Prescription pain relievers (opioids)
• Marijuana
• Synthetic marijuana
• MDMA (Ecstasy)
• LSD

Examples of prescription pain relievers that are typically involved in criminal drug charges include:

• Ocycodone (OcyCotin, Percocet)
• Hydrocodone (Vicodin)
• Morphine (Kadian, Avinza)
• Oxymorphone (Opana)
• Drugs containing codeine

Amphetamines, barbiturates, Ketamine, GBH, anabolic steroids, and any other drug can potentially lead to a criminal charge if it appears on a schedule of controlled substances and is sold by someone who is not authorized to sell it.

California Drug Felonies

Most of California’s drug laws are found in the Health and Safety Code (HS).

Sale, Transportation, And Importation

Section 11352 HS prohibits the distribution of controlled substances in California, as well as their importation and transportation. The statute makes it a felony to:

• sell,
• furnish,
• administer,
• transport for sale,
• import into California, or
• give away certain controlled substances. The statute also makes it illegal to attempt to do any of those acts.

Section 11352 HS applies to most of the controlled substances that are commonly involved in drug prosecutions, other than methamphetamine and marijuana (which are covered by different laws).

Penalties for violating section 11352 HS are generally a sentence of 3, 4, or 5 years in prison. However, if drugs are transported for sale beyond a neighboring county, the penalties are 3, 6, or 9 years. The penalties can be harsher if certain aggravating circumstances exist (such as selling to a minor).

Possession For Sale

Section 11351 HS prohibits possession for sale or purchase for resale of certain controlled substances. The law applies to most of the controlled substances that are commonly involved in drug prosecutions, other than methamphetamine and marijuana (which are covered by different laws).

Possession for sale means the accused possessed the drug and intended to sell it. The prosecution must prove that the accused knew he or she possessed the drug and knew the drug was some kind of controlled substance (although the accused need not know the exact identity of the drug).

Possession for sale is often charged when the police find a large quantity of drugs in the accused’s possession. A charge of possession for sale is usually based on the assumption that the quantity possessed is too large to possess for personal use. Other evidence that a prosecutor might rely upon to establish intent to sell includes the way the drugs are packaged, the presence of scales and packaging materials, testimony of informants who were working with the accused, and testimony of witnesses who purchased drugs from the accused in the past.

Penalties for violating section 11351 HS are generally a sentence of 2, 3, or 4 years in prison. However, if the offense involves cocaine base (crack), the penalties are 3, 4, or 5 years. The penalties can be harsher if certain aggravating circumstances exist.

Methamphetamine Offenses

The penalties for felony offenses for the sale, or possession for sale, of certain drugs are slightly less than those that are listed above. Those drugs include methamphetamine, GHB, ketamine, and certain anabolic steroids.

Section 11379 HS prohibits the sale, transportation, or importation of methamphetamine and other designated drugs. It parallels section 11352 HS except that the penalty for a conviction, in the absence of aggravating circumstances, is a sentence of 2, 3, or 4 years in prison. However, section 11370.4 HS provides that the sale of large quantities of methamphetamine adds the following additional time to the sentence that would otherwise apply:

• more than 1 kilogram adds 3 years
• more than 4 kilograms adds 5 years
• more than 10 kilograms adds 10 years
• more than 20 kilograms adds 15 years

Section 11378 HS prohibits the possession for sale of methamphetamine and other designated drugs. It parallels section 11351 HS except that the penalty for a conviction, in the absence of aggravating circumstances, is a sentence of 16 months, 2 years, or 3 years in prison. The additional penalties listed above for selling large quantities of methamphetamine also apply to possession for sale of methamphetamine.

Manufacturing

Section 11379.6 HS prohibits manufacturing a controlled substance without a license. The law applies to most of the controlled substances that are commonly involved in drug prosecutions.

Manufacturing is broadly defined to include processing, refining, or preparing a controlled substance. Thus, taking a step that is part of the manufacturing process is a crime even if does not result in a finished drug.

Penalties for violating section 11379.6 HS by manufacturing a drug are generally a sentence of 3, 5, or 7 years in prison. Certain aggravating circumstance can increase the penalties for manufacturing.

In addition, section 11379.8 HS provides that manufacturing large quantities (more than a pound) of methamphetamine requires an enhanced penalty. The additional penalty depends upon the quantity of methamphetamine that was manufactured.

Offering to manufacture (or to play a role in manufacturing) a drug also violates section 11379.6 HS. Penalties for offering to manufacture a drug are generally a sentence of 3, 4, or 5 years in prison.

Two related laws, sections 11383 HS and 11383.5 HS, prohibit the unlicensed possession of materials for use in manufacturing controlled substances. Those sections are typically used to charge people suspected of operating meth labs when the police do not catch them in the act of manufacturing. The penalty for violating those sections is a sentence of 2, 4, or 6 years.

Simple Possession

Possession of a drug for personal use is usually a California misdemeanor. Simple possession can be charged as a felony, however, if the accused is required to register as a sex offender or if the accused has a prior conviction for certain serious crimes (including murder, certain sex offenses involving violence or children, and vehicular manslaughter while intoxicated). If charged as a felony, the penalty is imprisonment for 16 months, 2 years, or 3 years in prison.

Marijuana Offenses

Possession of about an ounce of marijuana by someone who has attained the age of 21 is legal in California. Most California marijuana offenses (such as unlicensed sale, possession for sale, or cultivation) are misdemeanors, although they may be charged as felonies when committed by any of the people who can be charged with felonies for “simple possession” of other drugs.

It is a felony, however, for anyone over the age of 18 to sell marijuana to a minor. The penalties for that violation of section 11361 HS are 3, 4, or 5 years in prison (if the minor was age 14 or older) or 3, 5, or 7 years in prison (if the minor was under the age of 14).

Maintaining A Drug Dwelling

Knowingly allowing another person to sell, distribute, store, or manufacture drugs in a place (such as a home, apartment, garage, store, or other building) that the accused controls is a violation of section 11366.5 HS. The crime is a wobbler but it is usually charged as a felony. The penalty for a conviction is 16 months, 2 years, or 3 years in prison.

Another provision of the law prohibits renting a space to a drug dealer or manufacturer and allowing the space to be equipped in a way that prevents the police from entering, provided that the rent charged substantially exceeds the usual rental value of the space. That crime is a felony that carries a penalty of 2, 3, or 4 years in prison.

Money Laundering

A special provision of California’s money laundering laws applies to drug proceeds. Money laundering essentially refers to disguising the source of the proceeds. Laundering drug money violates 11379.9 HS, which prohibits:

• engaging in a transaction involving the proceeds of a controlled substances offense;
• with the intent to disguise the source of the proceeds;
• provided that the total amount that was laundered exceeds $25,000 over a 30-day period.

Money laundering of drug proceeds is a wobbler. If charged as a felony, the penalty is 2, 3, or 4 years in prison.

Federal Drug Felonies

Nearly all federal drug crimes other than simple possession of marijuana are felonies. While possessing limited quantities of marijuana is legal under California law, the possession of marijuana for personal use remains a federal misdemeanor. The sale and cultivation of marijuana are federal felonies. Whether the Justice Department will prosecute marijuana crimes in California is a political issue, and the answer seems to depend on the whims of the Attorney General who happens to be holding that office.

The most common federal drug felonies are:

Section 841 Offenses

Section 841 of Title 21 makes it a crime to knowingly and intentionally:

• distribute,
• dispense,
• manufacture, or
• possess with intent to distribute, dispense, or manufacture a controlled substance.

Distribution means transferring possession from one person to another. Money does not need to change hands.

Penalties for a section 841 offense depend upon the kind of drug and the amount of the drug involved in the offense.

For example:

• Distributing 1 kilogram of heroin requires the court to impose a sentence of at least 10 years in prison and authorizes a maximum sentence of life
• Distributing at least 100 grams but less than 1 kilogram of heroin requires the court to impose a sentence of at least 5 years in prison and authorizes a maximum sentence of 40 years
• Distributing less than 100 grams of heroin authorizes the court to impose a maximum sentence of 20 years

Similar penalties apply to other drugs that are commonly involved in federal prosecutions, although the drug quantity that triggers a maximum sentence of more than 20 years depends upon the type of drug involved in the crime. The maximum sentence for a section 841 offense involving 50 kilograms or less of marijuana, however, is 5 years.

Section 846 Offenses

Section 846 of Title 21 defines the crime of conspiracy and attempt. Attempt is occasionally charged when an accused tries but fails to distribute a drug.

The crime more commonly charged under section 846 is conspiracy to commit a drug crime. A criminal drug conspiracy requires proof that two or more people made an agreement to commit a federal drug crime. That agreement is a conspiracy. Most conspiracies involve an agreement to distribute a drug, but some cases (such as those involving meth labs) result in a charge of conspiracy to manufacture a drug.

To obtain a conspiracy conviction, the government must prove that the accused joined the conspiracy while knowing its objective (even if the accused did not know all the details) and joined with the intent that the conspiracy would achieve that objective. Since the offense does not require proof that the accused actually did anything, but only that the accused agreed to further the conspiracy’s objective, prosecutors regularly rely on conspiracy charges in drug cases.

The penalties for conspiring or attempting to commit a section 841 offense are the same as the penalties for committing a section 841 offense.