Under Business & Professions Code 4060, you may be in legal possession of a controlled substance so long as it was prescribed by a physician, dentist, veterinarian or naturopathic doctor under certain circumstances.
Of course, there are controlled substances such as cocaine, PCP, LCD and other drugs that are considered to have no medical value and have a high potential for abuse and are never prescribed to the general public. This code section also prohibits possession if you do not have a medical or pharmacy license or certification allowing you to dispense narcotic medications.
How does the prosecutor prove the crime?
In order to be convicted under 4060 BP, the District Attorney (DA) must prove each element of this offense. These consist of the following:
- You possessed or exercised control over a controlled substance
- You were aware of the drug’s presence
- You were aware of the nature of the drug as a controlled substance
- There was a sufficient quantity of the drug that could be used, and
- You did not have valid prescription for the drug that was for your use only
- Temporary possession of the drug
If you possessed the drug only for the purpose of turning it over to law enforcement or to dispose of it, then you have a valid defense. This does not apply if police arrive at your apartment or home and you are caught trying to burn or flush it down the toilet or were scattering it in the backyard!
- Lack of knowledge
If you are able to demonstrate that the jacket, purse, article of clothing or luggage in your possession or which belonged to you was out of your control or possession and was in someone else’s possession (for anytime), then you might be able to convince the trier of fact that you had no knowledge or awareness that the drug found was in your “possession.”
- Lack of possession
You may not have been in possession of the drug if someone else had control or access to the area where it was found. You may also have abandoned the drug days earlier but someone identified you as having had possession at some point. If you are arrested, you can argue you lacked possession or control of the drug the day you were arrested. It could have been tampered with or altered.
- Illegal search and seizure
Police overstep their authority or the law at times when arresting and/or searching persons they suspect of having committed a crime. You must be legally detained and only subject to a limited search under certain circumstances for this defense to apply.
If you are stopped for a traffic violation, your car may not be searched unless officers have probable cause to believe you are carrying controlled substances in your car.
If you are validly arrested, you can be searched, but only of your person and the immediate area that you have control and dominion. Otherwise, your car, home or business may not be searched absent a search warrant that is supported by an affidavit indicating probable cause. Search warrants limit the extent, time and scope of the search.
For example, if Officers are purporting to search for financial documents, then rummaging through your laundry or even your sock drawer likely exceeds the scope of the warrant. If the officer who drafted the affidavit and signed it fabricated facts to obtain the warrant, any evidence seized will be deemed inadmissible.
Misdemeanor or Felony
A violation of Business and Professions Code 4060 is a misdemeanor carrying up to one year in county jail and/or fine up to $1,000.
It is a felony, however, if you have a criminal history of violent felonies or sex offenses against a minor 14 years of age or younger, or are a registered sex offender. In these cases, you face 16 months, 2 or 3 years in state prison.
Drug diversion or deferred entry of judgment is possible for certain drug possession crimes if you are deemed eligible under Penal Code 1000 and/or Proposition 36. You are not eligible for Drug Diversion if you possessed the drugs for sale or were engaged in a violent act accompanying the offense.
More likely than not you would benefit under drug diversion if you possessed the controlled substances for your own personal use and you were not involved in any sexual or violent behavior. Other qualifying criteria include:
- No prior drug offenses
- No record of probation or parole violations
- You have not participated in a drug diversion program within 5 years of the current offense
- You have no prior felony convictions within 5 years of the subject or current offense
Post-conviction relief by way of an expungement is available in most cases for a conviction under Business and Professions Code 4060. A felony conviction under this section, however, does result in state prison time, which disqualifies you for expungement.
If you were convicted of a misdemeanor under Business and Professions Code 4060, you are eligible to have the conviction expunged. If you are convicted of a felony, though, your attorney may be able to convince the court to sentence you to county jail if possible in the event you are sentenced to be incarcerated. Otherwise, your felony is not eligible for expungement, however there are post-conviction relief remedies that you may pursue with the assistance of counsel.
When you are facing substantial jail time, or other severe penalties you should consider:
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