Regulation of Controlled Substances
California law follows the Federal schedule system developed under the Controlled Substances Act of 1970 to classify drugs into different categories. Some drugs, like cocaine, heroin, or methamphetamine, are unlawful to possess under all circumstances. Other drugs, like prescription medications, are legal to possess and can only be sold under certain circumstances.
Under the California Penal Code and numerous Health & Safety Code Sections, benzodiazepines like Xanax are considered Schedule IV drugs. This means that their possession, sale, and possession for sale of Xanax are only legal under strict regulations. Violations of these restrictions can result in serious criminal penalties.
Possession of Xanax for Personal Use – HS 11375(b)(2)
Possession of Xanax without a valid prescription is illegal under California law. California Health and Safety Code Section 11375(b)(2) states:
“Every person who possesses any controlled substance specified in subdivision (c), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be guilty of an infraction or a misdemeanor.”
Subdivision (c) contains a list of 17 “substances” including Xanax (alprazolam), which are legal to possess by valid prescription from a doctor, dentist, podiatrist, or veterinarian.
Prosecution for Possession of Xanax
If you are charged with this crime, the prosecution must prove the following elements to get a conviction against you:
- You did not have a valid prescription;
- You exercised control over the drug (or had the right to do so);
- You knew of the drug’s presence;
- You knew that is was a controlled substance; and
- There was a sufficient quantity of the drug to be used as a controlled substance.
Possession can be actual, constructive, or joint. You are in actual possession when the drug is found on your person, such as in your pocket, in an article of clothing or in your bag.
Constructive possession is when you do not have the drug on your person, but have access to the drug, and the right to exercise control over it. Ag good example would be that the drugs were not found on your person, but were found in your bedroom. It is therefore presumed that you have access, control and dominion over that space and would be considered culpable for the crime.
You may also be found to be in Joint possession of the narcotic or illegal drug when you and more than one other person share actual or constructive possession of the drug.
Possession for Sale of Xanax – HS 11375(b)(1)
California Health and Safety Code Section 11375(b)(1) states:
“Every person who possesses for sale, or who sells, any substance specified in subdivision (c) shall be punished by imprisonment in the county jail for a period of not more than one year or state prison.”
Under this law, there are two crimes relating to the sale of Xanax. First, it is a crime to actually sell the drug, unless you are in the class of persons or businesses who are exempt from the law, such as pharmacies or hospitals. The second crime is possessing Xanax for the purpose of selling the drug. In other words, the possession is not for personal use, but it is for an intended future economic gain.
For possession for sale (also referred to as “possession with intent to sell”), the prosecution must prove all of the following elements:
- You unlawfully possessed a controlled substance;
- You knew of its presence;
- You knew of the substance’s nature or character as a controlled substance;
- When you possessed the controlled substance, you intended to sell it;
- The controlled substance was Xanax; and
- The controlled substance was in a usable amount.
WHAT DOES THE PROSECUTOR HAVE TO PROVE beyond a reasonable doubt and present as evidence to prove intent to sell:
- The amount of Xanax you possessed;
- The packaging of the drugs;
- The amount of money found on and in close proximity to the drugs;
- The presence of multiple or prepaid cell phones; or
- Frequent visitors, texts, cell phone messages to your home or business.
Police Techniques—Investigating the Crime
Investigations into Xanax drug crimes often involve undercover police work including sting operations. It is much easier for a prosecutor to prove their case if you are caught in the act of selling the drug.
Common Police Tactics in the investigation of Xanax related charges:
- Confidential Informants for the police in exchange for money or for lenient treatment for his or her own case;
- Surveillance, such as a stakeout of a suspect’s home or an area known for drug dealing;
- Undercover officers posing as buyers or sellers for “buy-and-bust” arrests; or
- Monitoring the Internet to track an online “pharmacy” or to set up an undercover sting operation.
Punishments for Violation of Health and Safety Code Section 11375
Under California Health and Safety Code Section 11375(b)(1), the illegal possession for sale of Xanax is a misdemeanor crime. If convicted, you face up to 364 days in county jail.
Under California Health and Safety Code Section 11375(b)(2), possession of Xanax is a misdemeanor. The length of your sentence is determined by multiple factors, including the quantity of Xanax possessed, your prior criminal history of substance abuse, number of arrests, number of failure to appears, warrants, and general criminal history; and whether you are a minor.
Depending upon the above-mentioned factors, you may be sentenced up to a maximum of 364 days in county jail. However, you may be eligible for alternative jail sentencing options. SEE our alternatives to jail section HERE
Related Crimes Involving Xanax
Violations of Health and Safety Code section 11375 are often accompanied by additional charges for other crimes stemming from the arrest/ incident. Here are a few examples of the possible charges you might face in addition to selling, possessing for sale, or possessing Xanax for personal use:
- Health & Safety Code Section 11550–Being Under the Influence of a Controlled Substance Without a Valid Prescription;
- Health & Safety Code section 11364–Possession of Drug Paraphernalia;
- Vehicle Code section 23152(a)–Driving Under the Influence of Drugs;
- Health and Safety Code section 11375.5–Sale of Synthetic Drugs Health and Safety Code section 11375.5
Xanax Drug Crime Defenses Include:
- Negating the Elements
Fortunately, the prosecution must prove all of the elements of the charge beyond a reasonable doubt, a high burden. The highly experienced and skilled defense attorney at FIUMARA & MILLIGAN LAW, PC can raise any of the following defenses:
- No control. You did not exercise control over the drug.
- No knowledge. You did not know the drug was in your possession and/or did not know that the drug was Xanax.
- Insufficient amount. There was an insufficient amount of the drug found in your possession.
- Test the drug and find out that it was not Xanax at all but some fake, cheaper substitute…why get duped twice!
- Police Misconduct
Many criminal prosecutions are overturned by police misconduct and violations of the defendant’s rights under the Constitution. For example, if the police search your home without a warrant, the court could rule that the evidence obtained is inadmissible because of an illegal search and seizure.
In other cases, the tactics the police use could be inappropriate, such as falsifying reports as to the facts that gave probable cause for your arrest, or even going so far as to plant drugs on your person or in your vehicle.
If there is suspicion of police misconduct, our attorneys at FIUMARA & MILLIGAN LAW, PC will NOT hesitate to file a PITCHESS MOTION and ask the court for the right to review the officer’s record to examine it for past misconduct. If a pattern is discovered, it is possible that the officer’s misconduct can be used to dismiss or reduce charges against you.
Entrapment is a defense that purports that you were set up by the police to commit a crime you that you would not have committed, but for the police involvement. Entrapment is an affirmative defense, which means that the burden of proof is on you to show that the crime was caused by law enforcement’s actions and that you lacked criminal intent to commit the crime before the police became involved.
- Valid Prescription
If you possessed a legal Xanax prescription, you could avoid a conviction. However, this defense does not apply if:
- You had a fraudulent prescription for the drug (i.e. violation of California’s doctor shopping laws.)
- You are found in possession of more drugs than the prescribed number or quantity or
- You possessed Xanax that has been legally prescribed, but in reality it was for someone else that was not authorized to use the drug.
When you are facing substantial jail time, you ought to consider:
Always a Free Consultation at FIUMARA & MILLIGAN LAW, PC:
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