Are Most Drug Offenses Charged as Felonies or Misdemeanors in California? What Determines the Level of Offense Charged?
Up until relatively recently, nearly all drug offenses in California were charged as felonies. In recent years, California has changed its stance on drug offenses has evolved and now classifies most minor drug possession offenses as misdemeanors. In the case of marijuana, which has been mostly decriminalized in the state, most charges are not even misdemeanors, but are rather “infractions.”
For the most part, though, drug possession for personal use is charged as a misdemeanor, while possession for sale is a felony. However, this is not a strict rule, and courts often use their discretion when considering how to classify each drug charge charge on a case-by-case basis. There are several additional factors that go into determining whether a drug offense is charged as a felony or a misdemeanor, including:
- The type of drug involved
- The way that the evidence was confiscated
- The circumstances of the crime
- The location of the crime, and whether it occurred near a school, church, or other protected area.
- Whether there were aggravating circumstances
- Whether the offense involved violence or a firearm
- The amount in question and whether there was a clear intent to sell.
How Does the Type/Amount of the Drug Involved Affect the Seriousness Of A Drug Charge In California?
The quantity of a controlled substance in a person’s possession is considered indicative of the purposes of the possession. When there are large quantities of drugs involved, the prosecution will often claim that a person’s possession was for the purposes of sale.
Marijuana possession in California has been decriminalized entirely, unless:
- The person has one ounce (or 28.5 grams) or more
- The person is in a school zone or another protected area
- The person is providing marijuana to a juvenile.
What is the Difference Between Possession and Possession with Intent to Sell in California?
The charge of possession of a controlled substance is sometimes referred to as “simple possession.” Simple possession typically involves possession for personal use. In California, simple possession is typically a misdemeanor. On the other hand, possession of a controlled substance with the intent to sell, furnish, administer, give away, transport, or import is a felony.
Could I be Charged with Transporting Drugs Even if I Only had a Small Amount of Drugs in my Vehicle?
California Health & Safety Code Section 11352 prohibits the transportation of controlled substances and establishes that to transport controlled substances with intent to sell is a felony. It specifically reserves the felony charge for transporting with intent to sell, rather than for personal use. If the quantity of drugs in your vehicle was small enough to be considered for personal use only, you may still be charged with transportation of a controlled substance, but only as a misdemeanor. That is not to say that you could not be charged with a felony transportation if you had a small amount of controlled substances in your vehicle. It just means that if you can prove the transportation was for personal use, the charge may ultimately be reduced to a misdemeanor simple possession because it is not possessed for the purposes of sale or transported for the purposes of sale.
It should also be noted that while marijuana is decriminalized in California, you can still be charged with an infraction for possessing marijuana in an open container in a vehicle.
What are the Penalties for Possession of a Controlled Substance Under California Law?
Misdemeanor possession of a controlled substance (other than marijuana) can be punished by up to one year in county jail. Felony possession of a controlled substance for sale can be punished by up to five years in prison, depending upon the nature of the possession and the quantity of the controlled substance. Other sentencing enhancements exist for offenses involving minors and proximity to schools and other protected areas, which can significantly enhance potential prison time.
What are the Penalties for Transporting Drugs in California? What if I Crossed State Lines?
Felony possession of a controlled substance for sale can be punished up to 5 years in prison. Transportation of a controlled substance across two counties, meaning more than two non-continuous counties, can be punished up to 9 years in prison.
Transportation of a controlled substance across state lines can be charged in either of the states where the transportation occurred, or can be charged in federal court as a violation of federal law. If you are charged in federal court, you are subject to more stringent federal laws combating interstate drug trafficking.