In California, the legal ramifications of drug offenses carry substantial weight, particularly possession of controlled substances. If authorities find you in possession of controlled substances, you will be facing some serious consequences ranging from misdemeanor to felony charges, depending on the drug type and your criminal history. If law enforcement suspects you of drug trafficking, the situation goes from bad to worse. Drug trafficking charges are felonies and can carry lengthy prison time and hefty fines.

You will be suspected of drug trafficking if you have a controlled substance and are armed. This is a violation of Health and Safety Code 11370.1. You will need an aggressive criminal defense attorney to fight the charges because the state will be equally aggressive in seeking to have you convicted.

What Amounts to Possession of a Controlled Substance While Armed

Health and Safety Code 11370.1 outlines the specific circumstances in which you will be considered to be in possession of a controlled substance while armed. You would have committed the crime when:

  • You had a usable quantity of a controlled substance and were aware of its presence
  • You knew it was a controlled substance
  • The substance must be one specified in the statute
  • You had a loaded and operable firearm readily available for immediate use, while you had the controlled substance
  • You knew you had a loaded firearm for immediate use

     a) Controlled Substances

 Possession of controlled substances is clearly defined as prohibited by both California and federal laws, and both define specific drugs that are controlled substances. Cocaine, heroin, methamphetamine, LSD, and PCP are some of the commonly recognized controlled substances. The law also covers oxycodone, hydrocodone, and various other synthetic cannabinoids. Possessing any of these drugs without the necessary authorization is illegal.

Both legal frameworks also deal with analogs. However, they are not necessarily identified in the lists. An analog has structural or functional characteristics similar to those of a controlled substance that would produce similar effects. This distinction helps law enforcement deal with the emergence of new drugs that mimic the effects of regulated substances.

For example, synthetic cannabinoids, also known as spice or K2, are analogs of THC, the active compound in marijuana. Even though these substances may not appear on official lists of controlled drugs, their structural and effect similarities to THC make them controlled substances under state and federal laws.

Similarly, some opioid analogs, particularly fentanyl-related ones, are also included as controlled substances. Fentanyl itself is a potent synthetic opioid, and there are analogs of fentanyl that are more potent and dangerous. These modified substances might evade regulation due to their slight chemical variations. However, they still pose serious health risks and legal consequences.

     b) Possession of a Controlled Substance

In drug-related cases, especially in the cases of controlled substances, possession is a crucial element. The central legal argument is that you need to possess the substance in a usable amount. This possession can take two main forms:

  • Actual and
  • Constructive possession

When you have actual possession of the controlled substance in your control, for example, if you carry a vial of cocaine in your hand or have it in your backpack, you are in possession of that drug. Direct, tangible control over substance is all this form of possession requires.

However, constructive possession is different. This happens when you do not physically have the substance, but you still can access or control it. For example, let us say law enforcement finds methamphetamine in your vehicle, and you have the keys. You could be charged with constructive possession. In this instance, the prosecution must prove that you did have the intent and the ability to control the substance.

     c) Possession of a Loaded Firearm

HSC 11370.1 requires that in possession of a controlled substance while armed, you possess a loaded firearm readily available for immediate use. However, you do not have to have a firearm on your person at the time of the arrest. The state must prove instead that you knew of the firearm's presence and that it was available for defensive or offensive purposes.

Awareness of this is critical because it shows what the intent of having the firearm is in regard to drug trafficking activities. The state must show that you knew the gun was within reach and could use it effectively if required. Drug possession, coupled with the ability to have a firearm, is deemed to be an indicator of an increased risk of violence, which is often associated with drug trafficking.

A firearm is considered to be loaded when the ammunition is ready for immediate discharge. This means a round is in the chamber, or a magazine containing ammunition is inserted in the firearm. Put simply, a loaded gun can be discharged without having to do anything, like loading a round or placing a magazine in the gun.

     d) Knowledge of Both the Controlled Substances and the Firearm

In addition to your knowledge of the loaded firearm, you must also have known of the controlled substances and their illegal nature. Prosecutors face a significant challenge in establishing this awareness. They thus often rely on circumstantial evidence to make their case.

Several factors indicate your knowledge of the substances and can be considered circumstantial evidence. For example, if the drugs were found in a location you control, like your car or home, this suggests you knew they were there. Further, your behavior in the encounter with law enforcement will also be used as evidence. Some actions or words may seem suspicious and could mean you knew about the illegal activity.

Text messages and phone calls also provide insight into your knowledge. Messages that authorities find that indicate your involvement in drug-related activities can also tie you to the controlled substances.

However, circumstantial evidence lacks the definitive strength of direct evidence. Because prosecutors rely on circumstantial evidence, they are forced to present a compelling narrative, extending the thin facts together to prove knowledge beyond a reasonable doubt. This burden is difficult to meet, and it is an opportunity for your defense.

Fighting Possession of a Controlled Substance While Armed Charges

Working with an experienced attorney can be good. They can give you a better chance of developing a successful defense strategy. Work with an experienced attorney since they understand the legal complexities and will look at your case's details to determine what makes it strong or weak.  Your attorney will guide you through potential legal defenses, which include the following:

     a) Lack of Knowledge

You can effectively contest your charges by arguing that you did not know of the presence or nature of the controlled substances involved. The prosecution must prove that you not only had the drugs but also that you knew the drugs were at the location where police officers found them. If you can prove that you did not know the presence of the substances, then that undermines the prosecution’s case and could result in the charges being dismissed.

You can also apply the same argument to the loaded firearm in question. You could claim that you knew nothing about the gun, that it was around you, or that it was immediately unusable. This is also bound to weaken the prosecution’s case in convincing the courts to find you guilty. Your attorney can gather various evidence to support your claim that you lack knowledge. This could include presenting:

  • Witness statements saying you were not aware of the drugs or firearm
  • Documentation like rental agreements that show you do not live in the house. Thus, you did not have reason to suspect the drugs or the firearm were there.

For example, if the substances were hidden or if the gun was not yours, these factors can help build your argument.

     b) The Gun Was Not Loaded

If your attorney can make a compelling argument that the firearm was unloaded, you can successfully challenge the charges against you. HSC 11370.1 requires a gun to be loaded when charged with possession of a controlled substance while armed. Your attorney can provide various evidence to bolster this argument.

For one, they could present photos of the scene in which the weapons were unloaded or have witnesses testify that the guns had no ammunition when they were found. Expert testimony can further verify the firearm’s lack of capability to discharge without bullets. This evidence can establish reasonable doubt for the jury or judge about your culpability in the alleged crime.

Establishing that the firearm was unloaded takes the focus away from your actions and intentions. The prosecution will rely on the presence of a loaded gun for its claims of guilt. Without this vital evidence, the charges will likely be dismissed.

This defense strategy can also have broader implications for your case. When confronted by substantial evidence that calls into question their assertions, prosecutors could consider offering you a plea deal. Your charges could be reduced to simple possession with less harsh penalties.

     c) Police Officers Conducted an Illegal Search and Seizure

Even when the evidence against you appears overwhelming, you still have constitutional protections. The Fourth Amendment protects you against unreasonable searches and seizures. If law enforcement officers failed to follow legal procedures during the search, you can use that to your advantage and contest the charges against you.

Your attorney has to prove that the police did not follow established legal standards when they searched you. Some of the cases include:

  • If officers did not have probable cause to search your property or person or did not seek and obtain a warrant before doing so, their actions might be unlawful
  • If the police went beyond the scope of a warrant or used coercive tactics to get in, you were violated.

If the court finds your search to be unconstitutional, the court could exclude any evidence from your case that was the product of the search. The exclusionary rule prohibits law enforcement from conducting searches violating your rights and discourages law enforcement from conducting illegal searches to protect your rights.

Your attorney will comprehensively investigate the circumstances of the search. This could include discrepancies in a police report, inconsistencies in officer testimonies, or possible misconduct during the search. This careful examination can show you that your rights have been violated and help you build your defense.

If a vehicle was involved in the search, the police may have lacked probable cause for stopping you and subsequently searching the car. If the search occurred in a home, your attorney could question the validity of an entry without a warrant or exigent circumstances.

Penalties For Possessing a Controlled Substance While Armed

Once the state meets its burden, the jury or judge will find you guilty of possession of a controlled substance while armed with a loaded, operable firearm. This offense is categorized as a serious felony. Convictions can result in a sentence of 2, 3, or 4 years in state prison. The court could also impose a fine of up to $10,000.

If you are convicted of possessing a controlled substance while armed, you are not eligible for drug diversion programs or deferred judgment options. Usually, California offers these programs to people facing certain nonviolent drug charges for treatment instead of jail. Introducing a loaded, operable firearm significantly increases the gravity of the offense.

Is Probation Possible in a Possession of a Controlled Substance With a Firearm Case?

The courts could require you to remain under felony probation instead of imprisonment. This option gives you up to a year in county jail, and then you must serve at least three years on probation. During this period, you must meet a list of particular requirements to assist in rehabilitation and reintegration into society. These include the following:

  • Paying fees in full — You may also be required to pay fines within a specified timeframe.
  • Mandatory drug treatment — You will first be required to take part in drug counseling or treatment. The treatments aim at addressing the underlying issues of substance misuse, where it was a factor in the offense. You will also probably be subject to regular drug testing while on probation to make sure you never have any illegal substances in your system.
  • Check-ins with your probation officer—You need to meet regularly with your probation officer. They are tasked with monitoring your progress and ensuring you adhere to the court’s conditions.
  • Submitting to random searches — Law enforcement officers can also search your person, vehicle, or residence without a warrant.
  • Meeting mandatory community service hours — Community service is often a probation requirement and involves working on Caltrans projects, including roadside cleanup, to promote a sense of responsibility and community contribution.

Offenses Related to Possessing of a Controlled Substance While Armed

There are some charges you could face alongside or instead of possession of controlled substances while being armed. Some of them include the following:

  • Simple possession violates Health and Safety Code 11350 — This simple misdemeanor offense is punishable by $1,000 in fines and/or one year of probation.
  • Possession of a controlled substance with intent to sell — Charges under Health and Safety Code 11351 are punishable by 2, 3, or 4 years in jail and/or fines as high as $20,000.
  • Transportation of a controlled substance — If you are convicted under Health and Safety Code 11352, you will face grave penalties, including fines of up to $20,000 and imprisonment of 3, 6, or 9 years.

Regarding firearms, you could face charges under Penal Code 25400 for carrying a concealed gun. A concealed weapon found during a drug-related arrest can make a big difference in your case. Just as in Penal Code 25850, by publicly carrying a loaded firearm, you can also face charges under Penal Code 25850 if a loaded gun is found during your arrest.

If you are charged with carrying a concealed firearm without a valid permit, you could face misdemeanor or felony charges. If you are convicted on misdemeanor charges, you risk facing a jail sentence of up to one year and/or fines of up to $1,000. Felony charges, on the other hand, attract imprisonment sentences of up to three years and fines not exceeding $10,000.

Carrying a loaded firearm publicly is a wobbler offense, attracting penalties similar to those issued for carrying a concealed gun.

Find an Experienced Criminal Defense Attorney Near Me

Being in possession of controlled substances is a serious crime. Similarly, possession of a loaded firearm is in itself a serious issue because of the risk it poses to human life. The stakes increase when you combine drug possession with possession of loaded firearms. If authorities find a gun in connection with drug offenses, not only will your penalties be increased, but it will make your defense more difficult.

If you face these serious charges, you should contact an experienced criminal defense attorney. At Los Angeles Criminal Attorney, we work to protect our clients’ rights and explore defense options best suited to the circumstances of your case. Do not let one misstep chart the course of your future. Contact us at 424-333-0943 and let us work to fight the charges.