POSSESSION OF CRACK COCAINE IN CALIFORNIA
The national drug hysteria has moved its recent focus from crack cocaine to opioids, but the police continue to make crack cocaine arrests in Southern California. Fortunately, a skilled criminal defense attorney at the Law Office of Randy Collins can help accused offenders avoid the serious potential consequences of a conviction.
Crack Cocaine in California
Crack cocaine is made by heating a mixture of water, cocaine, and a substance that binds with the cocaine (usually baking soda). Unlike powder cocaine, the resulting “rock” can be smoked. Crack cocaine is a version of cocaine base, the name by which the drug is identified in California’s controlled substance laws.
The chemical composition of cocaine, whether powder or crack, is essentially the same, but smoking crack is a more efficient way of delivering the drug to the brain than snorting powder. For that reason, drug warriors contend that crack is a more dangerous drug than powder cocaine. The evidence in support of that contention is less than convincing, but the drug warriors have nevertheless convinced many legislators that crack cocaine is a “scourge” that needs to be addressed with harsh penalties.
Since there is no approved medical use for crack, it is classified as a Schedule I controlled substance. That means it cannot be prescribed or lawfully possessed.
Crack Possession Offenses In California
Possessing a drug means to knowingly have control over it. If someone slips crack into the accused’s jacket pocket and the accused is not aware that the drug is there, the accused did not knowingly possess the drug.
“Knowing” does not mean that the accused needs to know the drug is crack, but the accused does need to know that the drug is illegal. If the accused thinks the drug is aspirin, she is not knowingly possessing a controlled substance.
More than one person can possess the same crack. When two people pool their money to buy an eight-ball of crack that they plan to share, they jointly possess the drug.
Possession of crack can be actual or constructive. Actual possession means having the drug in the accused’s immediate presence and control.
Constructive possession means having control over the drug even if it isn’t in the accused’s immediate possession. Hiding the drug in a friend’s closet is constructive possession if the accused can gain access to the closet in order to retrieve the drug.
The penalties for possession are the same, whether the crack is possessed individually or jointly, and whether possession is actual or constructive.
The California crime of simple possession is the least serious drug possession crime. Simple possession means the knowing possession of a controlled substance. The crime is charged when prosecutors have no reason to believe (or do not think they can prove) that the accused intended to sell or otherwise transfer possession of the drug to someone else.
Simple possession is typically possession for personal use. However, the prosecutor does not need to prove that the accused used or intended to use the drug. It is enough to prove that the accused possessed it, knew that he possessed it, and knew it was a controlled substance.
Simple Possession Penalties
When California voters passed Proposition 47 in 2014, simple possession of crack cocaine became a misdemeanor. The maximum penalty for a conviction is 1 year in jail and a fine.
Proposition 47 included an exception that allowed individuals with a prior conviction of a few violent offenses or sex offenses, as well as registered sex offenders, to be charged with a felony. If simple possession of crack is charged as a felony, the maximum sentence is 16 months, 2 years, or 3 years in jail.
Probation is available for a simple possession conviction. Individuals who do not have a serious criminal history are in the best position to receive probation. An experienced criminal defense lawyer can make sure that the accused says and does the right things in order to maximize the opportunity to receive probation.
A drug diversion program is also available to many individuals who are charged with simple possession of crack. The accused will typically participate in drug treatment instead of serving a jail sentence. If the treatment program is completed successfully, the charged is dismissed.
Possession for Sale
The California crime of possession for sale is committed by possessing a drug with the intent to transfer possession to another person or persons, usually by selling it. Prosecutors often charge the offense of possession for sale when they believe the drug quantity is too great to be for personal use.
Even when the quantity is not great, other evidence might convince a prosecutor to charge possession for sale. Statements made by drug buyers and informants, other evidence of past sales, and the presence of scales and packaging materials might convince a prosecutor to charge possession of a relatively small amount of crack as possession for sale.
Possession for Sale Penalties
Possession for sale is a felony. A conviction allows a judge to impose a sentence of 2, 3, or 4 years in jail.
Probation is a possible outcome when a defendant is convicted of possession for sale. As a general rule, drug diversion programs are not available unless the offense is reduced in a plea bargain.
Crack Possession Defenses
Several defenses can be raised to a charge of crack possession. If the charge is simple possession, potential defenses include:
- The drugs were planted by someone and the accused did not know about them
- The drugs belonged to another person and were never controlled by the accused
- The accused did not know that the substance she possessed was a drug
- The accused took the crack from someone else with the intention of turning it over to the police
- The police obtained the drugs as a result of illegally detaining the accused
- The police obtained the drugs as a result of an illegal search
- The only evidence that the drugs belonged to the accused came from a statement that was obtained in violation of the accused’s constitutional rights
If the charge is possession with intent to distribute, all of the defenses listed above may be available. Additional defenses include:
- The accused possessed the drugs for personal use, not for sale
- Informants and other witnesses who are claiming that the accused is a drug dealer are not credible
- Any alleged “packaging materials” were ordinary kitchen supplies
In some cases, defenses are raised in pretrial suppression hearings or at trial. In other cases, the available defenses weaken the prosecution’s case and open the door to a favorable plea bargain.
The best defense depends on the facts of the case. A Southern California drug defense lawyer at the Law Office of Randy Collins can advise individuals who are accused of crack possession about their defense options.