HEALTH & SAFETY CODE §11377 – POSSESSION OF METHAMPHETAMINES
Health & Safety Code §11377 makes it a crime to possess methamphetamines, for personal use, without a valid prescription.
What are Methamphetamines?
Methamphetamines, also known as meth, speed, crystal, crystal meth, rock, glass, crank or blow, is a controlled substance. The term “controlled substance” refers to a drug or chemical whose possession or manufacture is regulated by federal law, and specifically, under the “United States Controlled Substances Act.” Methamphetamines are stimulants, and are generally available as pills, crystal rock form, or powder. They can be swallowed, snorted, smoked, injected or inhaled in gas form. Historically, meth has been used by truckers, athletes, students and others in order to increase energy or stay awake. Possession of methamphetamines are generally illegal unless a valid prescription is first obtained.
Explanation of the Law
In order to be found guilty of possession of meth under H&S §11377, four (4) elements must be proven by the prosecutor:
- You possessed methamphetamines;
- You knew that you possessed the methamphetamines;
- You knew that you possessed a controlled substance (even if you were not aware that it was meth); and
- The amount of meth you possessed was enough to be used as a
Under California law, there are three different types of “possession”:
- “Actual” possession: the meth was on your body, clothes or something you were wearing;
- “Constructive” possession: the meth was not necessarily on your body, but you had control over where the meth was; this can be direct control or through another person; or
- “Joint” possession: you shared possession – either actual or constructive – with at least one other
For knowledge, the prosecutor must prove:
- You knew of the presence of the meth; and
- You knew that it was a controlled
- The prosecution must likewise prove that you had enough meth to snort, swallow, smoke, inhale, etc. It is not necessary for the prosecutor to prove that you possessed enough meth to get “high.”
Possession for Use vs. Possession for Sale
H&S §11377 only deals with possession of methamphetamines for use; a separate statute,
- 11378, governs possession of meth for sale. The determination of whether possession is for use or sale is governed by several factors:
- Quantity of meth in your possession. The amount of meth you possessed is powerful evidence of whether it was for use or sale. The greater the quantity, the easier it is for the prosecutor to show that it was intended for sale, and not
- How the meth was contained. If you are found with a number of separated “baggies” or other containers of meth, it is easier to prove that you had it for sale. But if the meth was found in one container, it would be more suggestive of
- Presence of drug paraphernalia. The presence of items such as weighing scales or cutting equipment could be evidence of possession for sale. On the other hand, a pipe, needles, syringes, empty ink pens, straws, or aluminum foils and cans would be strong evidence of
- Other evidence. Eyewitness testimony, tape recordings and other things could be evidence of whether you possessed meth for use or
Legal Defenses to H&S §11377
There are a number of viable legal defenses to H&S §11377 that could lead to charges being either dismissed or reduced. These include any one or more of the following:
- No possession. You were not in possession of the meth and/or the meth did not belong to you.
- No knowledge. You genuinely did not know that the substance you were in possession of was a controlled
- Illegal search. The police found the meth during an illegal search. If your attorney concludes that the search was illegal, he/she may decide to file a Motion to Suppress Evidence, otherwise known, in California, as a 1538.5
- Coercion. The police illegally coerced a confession out of you. If your attorney concludes that police coercion lead to a confession, then he/she may decide to raise an objection with the court or to otherwise file a Motion to Suppress
- Valid prescription. The amount of meth you possessed was consistent with a valid prescription.
See, People v. Mower (2002) 28 Cal.4th 457. “Valid prescription” is defined in H&S §§ 11027, 11164, 11164.5. Furthermore, Health & Saf. Code, § 11150 delineated the health care professionals who are allowed to write prescriptions.
Examples of H&S §11377
- Julie told David to hold her purse for her while she went shopping. Inside the purse was a baggie of methamphetamine and pipe. David did not know what was in the bag or that it could contain a controlled substance. If arrested for H&S §11377, David would have a strong
- Jeremy was pulled over for speeding. While talking to him, the police officer saw a suspicious bag on the passenger seat. Upon further investigation, the bag was found to contain over 30 baggies containing over 120 grams of methamphetamine, along with a weighing scale. Jeremy will likely be arrested and charged with H&S §11378 for possession for sale of
- Based upon surveillance video, the police conclude that Benjamin was involved in an armed robbery at a local grocery store. After obtaining an anonymous tip that Benjamin is living in his friend, Stephanie’s, apartment garage, the police obtain a warrant to search that garage. However, during the search, the police also decide to look through Stephanie’s bedroom, too; while in Stephanie’s bedroom, they find over 10 grams of meth. Stephanie gets charged with violating H&S 11377. However, considering that the police did not have a warrant to search her bedroom (only the garage, where Benjamin was allegedly staying), Stephanie’s attorney may likely file a Motion to Suppress Evidence (PC 1538.5 Motion) in order to prevent the 100 grams of meth from being used against her in court. Under these circumstances, the motion will have a good likelihood of succeeding.
Penalties and Punishment for H&S §1137
H&S §11377 is a “wobbler”, meaning that it may be charged as a misdemeanor or a felony. Most of the time, H&S §11377 is charged as a misdemeanor. When charged as a misdemeanor, punishment can include:
- up to one (1) year in county jail, and/or
- a fine of up to one thousand dollars ($1,000).
However, H&S §11377 may be charged as a felony under the following circumstances:
- If you have a prior conviction on your record for a number of serious felonies, including but not limited to murder, sex crimes against children under 14, vehicular manslaughter while intoxicated, and crimes requiring sex offender
- If you are charged with felony H&S §11377, you can fax a minimum of 16 months or possible prison
Note: Before Proposition 47 (Prop 47) had been passed in 2014, a conviction of H&S §11377 could result in a prison sentence if the crime was charged as a felony. But due to Prop 47, the possession of crystal meth, for use, is now almost always a misdemeanor offense, meaning a maximum one year of jail time.
Diversion Programs for H&S §11377
You may be eligible for drug diversion (treatment) in lieu of jail time for a §11377 conviction, under the following circumstances:
- You are a first or second time non-violent offender, and
- The meth was for your own personal
California has a number of drug diversion programs, including:
- Penal Code 1000
- Proposition 36
- California drug
Note: Please review The Tabibnia Law Firm’s website article on Drug Diversion Programs, for more information.
Immigration Consequences of a conviction for H&S §11377
H&S §11377 is not considered a “crime or moral turpitude” or an “aggravated felony” under federal immigration law. However, it is often considered a “controlled substance” conviction. As such, certain immigration consequences are possible. We are here to help. Along with our criminal practice, the Tabibnia Law Firm can refer you to a number of excellent immigration attorneys who will provide you with crucial legal advice on your immigration status.