San Diego, CA Drug Attorneys
Possession with the intent to sell is essentially an allegation of drug trafficking or distribution, without proof of an actual transaction where drugs are exchanged for money. Controlled substances applicable under this section include opiates and opiate derivatives, cocaine based stimulants and any derivatives thereof, amphetamines and any derivatives thereof and hallucinogenic substances including mescaline, peyote, tetrahydrocannabinols and any derivatives.
Though direct proof of sales may be absent, Heath and Safety Code §11351 is still a felony potentially carrying 4 years of prison (per count) and/or jail time if convicted. Unfortunately, it is common for innocent people to be arrested and prosecuted for having the intent to sell a controlled substance when their actual intent was merely for personal use.
How to Fight Possession with Intent Charges
For these reasons, it is critical that your San Diego drug crimes attorney understands exactly how the prosecution will attempt to show your conduct went beyond mere possessioninvolving actual intent to sell the
In order for the prosecution to meet this burden it must prove:
- You had possession or a right of control over the drug, or that you purchased the drug,
- Knowledge of the drug’s presence,
- Knowledge of the drug’s nature as a controlled substance,
- The amount was enough to use or sell, and
- You had the specific intent to sell
Proving that an individual had control over the drug as well knowledge of the drug’s presence and nature as a controlled substance is critical with regards to the possession element of the charge. Depending on type of drug, the court will have a general standard for which to determine the amount sufficient for use or sale. For example, the court may consider an ounce of marijuana or cocaine may be sufficient. The prosecution’s most difficult and critical task will be to prove the element requiring a specific intent to sell the drug. Without intent, the charges may be plea-bargained to possession for personal use charges, resulting in possible fines and rehabilitation classes rather than jail time commonly given for felony intent to sell.
Because the mind-state of an individual is essentially impossible to prove, the prosecution will attempt to introduce circumstantial evidence such as:
- The quantity in possession
- Whether or not the quantity was found in separate containers or bags, or
- Whether or not any paraphernalia is found at the time of arrest
None of these factors are dispositive as to the element of intent. Attorney Marc Kohnen can use any one of these factors to strengthen your defense against the prosecution’s case. For example, regarding the issue of quantity, an individual may choose to buy in bulk for personal use to decrease risk by limiting the frequency of trips to the source, and to purchase their drugs at a better price. With regards to separate bags or containers, as is especially the case for qualified Medicinal Marijuana Patients accused of HS §11351, keeping their medicinal marijuana in separate bags or containers is consistent with controlling legally prescribed daily dosage.
Finally, regarding lack of paraphernalia, if one lacks the tools necessary to ingest the drug at the time of arrest, it does not necessarily follow that they intended to sell the drug to another individual. Quite simply, this is an illogical and overly prejudicial argument which the court has the power to disregard.
Need an attorney for drug charges in SD County?
If you are arrested and charged with having the intent to sell and controlled substance, there may be number of defenses that are available to you. The validity of the search and seizure may be challenged if law enforcement did not follow strict constitutionally protected guidelines while obtaining evidence, when searching your person, vehicle, or home, or risk exclusion of evidence. Most importantly, there may be the defense that you simply did not have intent to sell.
If you or a loved one has been arrested and charged with possession with the intent to sell, contact The Law Office of Marc S. Kohnen today for a complimentary consultation regarding your legal options.
“When I met Marc, I was immediately relieved. His calm and professional demeanor was exactly what I needed. He handled my case without a hiccup.”
Heather M. | Rosemead, CA
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
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Contact The Law Office of Marc S. Kohnen if you have been arrested and charged with a crime and need a skilled San Diego criminal defense lawyer. The firm represents clients throughout the community, and you can learn about their services by visiting the Areas We Serve page.Office of Marc S. Kohnen
1350 Columbia Street, #700
San Diego, CA 92101