November 15, 2013 By Wallin & Klarich

Have you or someone you know just been arrested for possession of cocaine in Orange County? If so, contact the attorneys at Wallin & Klarich now to learn about your legal rights.

Recently, Senator Mark Leno of San Francisco introduced a bill that would allow prosecutors to charge possession of heroin, cocaine and other hard drugs as a misdemeanor rather than a felony. The bill was a modest attempt at sentencing reform in light of the prison-overcrowding crisis. However, Governor Jerry Brown vetoed the bill, stating it was premature because the state is about to conduct a comprehensive review of the sentencing structure for all crimes.1

What Does Having Possession of Cocaine Mean?


In California, Health & Safety Code 11350 governs possession of a controlled substance. It prohibits possessing specific controlled substances, such as cocaine, without a valid prescription.

A controlled substance is a drug or chemical whose manufacture, possession and use are regulated by the government under the United States Controlled Substances Act.

Under Health & Safety Code 11350, the word possession can refer to three distinct legal ideas. It can refer to an actual possession, constructive possession, or joint possession. Possessing an illegal narcotic under any of these definitions is illegal.

  • If you have actual possession of a controlled substance, then you have direct and immediate physical control over it. This usually means the drug is on your person.
  • If you have constructive possession over a controlled substance, it means that the drugs were not found on your person but were discovered in a location over which you exercise control.
  • You have joint possession when you and at least one other person share either actual or constructive possession.2

Before you can be convicted of possession of cocaine, the prosecutor must prove that you knew of the drug’s presence and that you knew of its nature as a controlled substance. If these two elements are not met, then you will likely not be convicted of this crime.

If you are arrested for possession of cocaine, it is considered a felony. The court has the following options at time of sentencing:

  • Sentence you to 16 months, two or three years in county jail;
  • Place you on probation and impose a sentence of up to one year in county jail;
  • Place you on probation with no jail time;
  • Place you on formal probation and assign you a probation officer; OR
  • Offer you a drug diversion program and upon its successful completion, your case can be dismissed.

First time drug offenders charged with possession are often sentenced to probation under California’s Proposition 36, subject to a variety of qualifications such as random drug testing and employment.

What Do I Do if I am Charged with Possession of Cocaine in Orange County?

If you or someone you know has been charged with cocaine possession, it is important to seek an experienced attorney who is familiar with defending those accused of drug offenses in California. There are a variety of legal defenses to a possession charge that a skilled attorney could present on your behalf. Examples of these defenses are:

  • You did not possess the cocaine,
  • You only had temporary possession of the cocaine,
  • Illegal search and seizure, and
  • Lack of knowledge.

Call us today at (888) 280-6839 for a free consultation. The attorneys at Wallin & Klarich are ready to work diligently on your behalf.

1. [“Gov. Brown vetoes bill allowing misdemeanors for cocaine, heroin.” Los Angeles Times. .]
2. [“Health and Safety Code 11350.” Leginfo. .]

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