Every crime in California is defined by a specific code section. Our attorneys explain the law, penalties and best defense strategies for every major crime in California.
Crimes by Code
Every crime in California is defined by a specific code section. Our attorneys explain the law, penalties and best defense strategies for every major crime in California.
California DUI
DUI arrests don't always lead to convictions in court. Police officer mistakes, faulty breathalyzers and crime lab errors may get your charges reduced or dismissed. Visit our California DUI page to learn more.
Post Conviction
A criminal record can affect job, immigration, licensing and even housing opportunities. In this section, we offer solutions for clearing up your prior record.
Please note: Our firm only handles criminal and DUI cases, and only in California. We do not handle any of the following cases:
And we do not handle any cases outside of California.
Call Us NowPosted on
In California, the amount of time you can spend in jail or prison after a conviction for drug possession varies widely. It can be multiple decades or no time at all. Custody time ultimately hinges on five primary factors:
The biggest factor in the range of jail time that you can receive is whether the charges are for:
Depending on the drug possession charges and absent other factors, you could face no jail time at all, or up to 9 years.
Simple possession of a controlled substance, also known as drug possession for personal use, is California’s least severe drug offense.
Typically, it is a misdemeanor that carries up to 1 year in county jail. You may also be eligible for a drug diversion program.
However, if you have a prior conviction for a serious or violent felony, you can face 16 months, 2 years, or 3 years in jail.
Note that the possession of marijuana for personal use is legal in California.
Possession with intent to sell carries more jail time for a conviction. This offense is a felony. Convictions carry 2, 3, or 4 years in jail. That jail term is for each intended sale, so it can grow very quickly.[1]
Our criminal defense lawyers have found that prosecutors tend to prove that you intended to sell the controlled substances using the following “indicators of sale”:
Drug trafficking, known in California as selling or transporting controlled substances, is the crime of selling or furnishing a useable amount of drugs, or moving them for sale.
These are felony charges.
Convictions for a first-time offense carry 3, 4, or 5 years in jail. This increases to 3, 6, or 9 years in jail if you brought the drugs across 2 or more county lines within California.
If you have at least one prior conviction for a felony drug crime, you would face an additional and consecutive 3 years in jail for each of those prior convictions.[2]
How much was found will also impact the jail sentence.
If lots of drugs were found, it will likely alter the charge from simple possession to possession with an intent to sell. This increases the potential jail time.
The jail time for convictions for either drug trafficking or possession with an intent to sell also increases if you had lots of:
You would face an additional:
The type of drug that was found in your possession can influence the jail time you receive in some situations.
For example, simple possession charges involving over 1 kilogram of methamphetamine carry 3 to 15 years in state prison, in addition to the typical 1-year term.[4]
Another example is the additional prison time that you would face for drug trafficking or possession for sale if you were found with at least a kilogram of:
Certain prior convictions can lengthen your prison time for a drug possession conviction. These prior convictions are generally for:
For example, the 1-year maximum sentence for simple possession increases to 3 years if you have a serious or violent felony conviction on your record.
Certain aggravating circumstances in your arrest may increase the amount of time you spend behind bars.
For example, if you sell or transport drugs within 1,000 feet of a:
Another aggravating circumstance would be to sell drugs to a minor under the age of 18. If you were 4 years older than the minor, your jail sentence would increase by 1, 2, or 3 years.[7]
Under California law, criminal elements are different for:
For simple drug possession, the elements are that you:
The elements of drug possession for sale are the same, plus the element that you intended for it to be sold when you had the controlled substance.[9]
For drug trafficking, there is the additional element that you actually transported it, or sold or otherwise furnished it to someone.[10]
Note that “possession” of drugs includes:
The prosecutor has the burden of proving each element of the offense beyond a reasonable doubt. A criminal defense attorney can work to prevent this from happening.
Drugs that are illegal to possess without a valid prescription are controlled substances. Both state and federal law have lists, referred to as Schedules, that sort controlled substances according to:
Schedule V drugs have medicinal use and little risk of addiction, like Tylenol with small amounts of codeine.
Schedule IV drugs have medicinal uses but can cause addiction, like Xanax or Ambien.
Schedule III have moderate risks of addiction, like ketamine.
Schedule II drugs have significant risks of addiction, but also have legitimate medical uses. Among the examples are some prescription drugs:
Schedule I drugs are addictive and have no medicinal value. Examples include opiates and hallucinogens like:
Federal drug law uses these Schedules to determine sentencing for federal convictions. This includes for certain serious drug charges that happen in the state of California.[12]
Convictions for drug possession in California do not just come with jail time. You could also face:
Legal References:
[1] People v. Lopez, 42 Cal. App. 5th 337 (2019).
[2] California Health and Safety Code section 11370.2 HS.
[3] California Health and Safety Code 11370.4 HS.
[4] Same.
[5] California Health and Safety Code 11380.7 HS
[6] California Health and Safety Code 11353.1 HS.
[7] California Health and Safety Code 11353.1(a)(3) HS
[8] California Criminal Jury Instructions (CALCRIM) No. 2304.
[9] CALCRIM No. 2302.
[10] CALCRIM No. 2300.
[11] CALCRIM No. 2304. See also People v. Barnes, 57 Cal.App.4th 552 (1997)
[12] 21 USC 801 et seq.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.