Being arrested or charged with a crime can be an emotional and terrifying experience, particularly if the charge you are up against involves controlled or illegal substances like cocaine. If you or someone you care about is behind bars as a suspect in a crime involving illegal drugs, your reputation and freedom could be compromised.

While most drug offenses, like simple possession, are typically misdemeanors, the prosecutor can file your offense as a felony under certain circumstances. That means the penalties you will likely face upon a conviction at trial will be harsh enough to punish you and deter people with similar behavior.

What is the Legal Definition of a Drug Offense?

Before we discuss various factors that could make the drug offense you are up against a felony, you would want to comprehend what qualifies as a drug offense in the eyes of the court. A drug is any substance that could affect your physiological and psychological state, including prescription drugs like codeine and Vicodin.

Regardless of the relentless efforts by the police to curb these crimes on the streets, drug crimes are still common. Generally speaking, you could land in trouble with the law for a drug-related offense when you breach or violate statutes relating to the possession, transportation, manufacturing, and trafficking of unlawful or controlled substances.

Unlike other illegal drug substances, the cultivation and possession of cannabis or marijuana are legal within certain set limits. For instance, possession of up to one ounce (28.5 grams) of marijuana is legal as long as you are twenty-one (21) years old or older.

Regardless of whether you are a first-time offender or a repeat offender, speaking with a defense attorney is a move you cannot regret when you are under investigation or charged with a drug-related offense.

The attorney you will hire can help you obtain a release from jail on bail pending the outcome of your case and help you prepare suitable defenses to challenge the allegations you are up against.

Various Aggravating Factors That Could Make a Drug Offense a Felony

As mentioned in the previous paragraph, most drug offenses are chargeable as misdemeanors, but some circumstances and facts could make the prosecutor file felony charges against you. A conviction for a misdemeanor drug charge will attract less jail time of not more than one (1) year. However, if your offense is a felony, you could serve a jail sentence of up to five (5) years upon conviction.

Due to the severity of a felony drug charge conviction, it is a brilliant idea to educate yourself on what can make a drug charge a felony. Below are some of the factors that can make the prosecutor file your drug offense as a felony upon arrest:

  1. The Specific Type of the Involved Drug and its Quantity

The type and quantity of controlled drug substances you had in your possession at the time of your arrest can influence the severity of charges the prosecutor will file against you in court. For instance, if the involved controlled drug substance is heroin or cocaine, the prosecutor will file felony charges against you because these Schedule 1 drugs are dangerous and harmful.

However, when the involved drug is cannabis, the quantity or amount you have in your possession will come into play when determining whether to file your charges as a misdemeanor or felony. Since the enactment of Proposition 64 in November 2016, an adult aged 21 years or older can possess and buy up to:

  • 5 grams (1 ounce) of dried cannabis.
  • Eight (8) grams of concentrated cannabis.

In most cases, simple possession of cannabis or marijuana will attract misdemeanor charges. However, if the weight of the cannabis you had in your possession exceeds this legal limit, the prosecutor will file felony charges against you because that amount shows you had the criminal intent to distribute or sell it,

Generally speaking, the amount and the specific type of controlled substance you had in your possession will determine the seriousness of the charges the prosecutor will file against you. Ensure you retain the services of an attorney and discuss with him/her every detail of the case to prepare legal defenses to challenge the charge.

Whether the Involved Drugs Were for Distribution or Personal Use 

Possession of particular controlled drug substances for personal or recreational use will attract misdemeanor charges, but possession for sale will carry felony charges. The difference in the seriousness of the penalty you will receive upon conviction reflects the lawmakers' view of the potential harm caused by each offense.

If the drugs you had in your possession were for recreational or personal use, you are the only person the drugs can affect. However, if the drugs you had in your possession were for sale, you could sell or distribute them, harming several innocent people. That is why penalties for having controlled drug substances in your possession are harsh to deter people with similar behavior.

Here are some facts the prosecutor can use to prove that you had the criminal intent to distribute the drugs you had in your possession:

  • You used small baggies, balloons, or bundles to package the drugs.
  • The drug you had in your possession exceeded the legal limit for personal use (if that drug was marijuana).
  • You had drug paraphernalia in your possession.
  • You had ready cash in your possession.
  • You had weighing instruments in your possession.

Having a Criminal Record

Having a criminal record, especially for a drug-related offense, could substantially make your new drug charge harsher because it shows you are a notorious offender who is not ready to learn from past mistakes.

According to the Three Strikes Law, if you have two past convictions for a violent or serious felony offense, your third serious felony charge conviction could attract up to twenty-five (25) years in jail or life in jail.

Aggravating Factors Present in Your Case

The prosecutor can also file felony charges against you upon an arrest for a drug-related crime if your case had one or more aggravating factors or circumstances. Examples of these aggravating factors include:

  1. Possession of a Firearm

According to the Health and Safety Code (HS) 11370.1, it is a crime to have an unlawful or controlled drug substance in your possession while armed with a loaded and operable firearm. A HS 11370.1 violation conviction will attract a fine not exceeding $10,000 and up to five years of jail time.

Even though you did not threaten anyone with the firearm or discharge it, you can still face charges under this statute. Hence, you would want to consult an attorney as soon as possible if your offense involves the possession of a controlled drug substance while armed with a loaded firearm.

  1. A Minor (Someone Under the Age of Eighteen Years) Was Involved

Due to the need to protect our children from exploitation and indulging in drugs and drug-related crimes, drug-related cases where minors are involved often result in harsh penalties upon conviction. In addition to the possible lengthy jail time you will face, drug-related offenses where minors are involved could negatively affect your child's visitation and custody rights.

  1. Having Unlawful Drugs in Your Possession Near Schools

If the prosecution team can prove that you committed a drug offense near a school, you should expect harsh penalties upon a conviction because schools are drug-free zones.

  1. Resisting an Arrest

Even if you believe the allegations you are up against are untrue, resisting an arrest is not wise because the prosecutor can use that against you in court, making your case harsher. The prosecutor could reduce your drug charge if you cooperated with the arresting officers.

However, you should consult your defense attorney for legal guidance before you disclose any information to the arresting officers.

  1. Having Unlawful Drugs in Your Possession Near a Drug Treatment Facility

Possession of controlled drug substances near a drug treatment facility is another aggravating factor that could increase the seriousness and potential penalties of your drug-related charge.

If your drug charge has either of these aggravating factors, the prosecutor will likely file your case as a felony, meaning the penalties you will receive upon conviction are grave. However, with the help of an aggressive defense attorney, you could avoid a felony drug charge conviction or obtain less serious penalties.

Potential Sentence for Felony Drug-Related Offenses

As mentioned in the previous sentence, the legal penalties for a felony drug charge conviction are harsher than those for a misdemeanor drug charge conviction. However, the specific sentence you will receive upon conviction at trial will depend on the seriousness of the drug charge you are up against. For instance, here are the penalties for various common felony drug offenses:

  1. Maintaining or Operating a Drug Store or House

According to HS 11366, it is illegal to operate or maintain a drug store or any place that distributes or sells controlled drug substances. Since it is a wobbler, the prosecutor could file HS 11366 charges as either a misdemeanor or felony, depending on the specific facts of your case. Here are examples of acts that could attract charges under this statute:

  • Maintaining a truck service to assist in selling and distributing cocaine.
  • Selling unlawful drugs out of the back half of your business.
  • Opening a burger shop to use it as a place for selling methamphetamine.

Like any other offense, the prosecutor must prove certain facts (elements of the crime) at trial to secure a HS 11366 violation conviction against you. To obtain a conviction against you under this statute, the prosecutor must prove the following facts:

  • You maintained or opened a drug store or house.
  • You did so with the criminal intent to give away, sell, or allow people to use drugs there on a repeated basis unlawfully.

When the prosecutor obtains a felony drug charge conviction against you under HS 11366, your sentence could include up to three (3) years of jail time and a fine of up to $10,000. Since it is a wobbler, a conviction under this statute could also result in the following misdemeanor penalties:

  • A fine amounting to up to $1,000.
  • Up to one (1) year of detention in the county jail.
  • Misdemeanor or informal probation.

  1. Laundering of Drug Money

HS 11370.9 makes it a criminal offense to launder the proceeds of illegal drug sales. For the sake of this statute, to "launder" means to disguise or hide the source of the money. Below are a few examples of illegal acts that could attract charges under this statute:

  • Receiving funds from a successful drug deal and agreeing to deposit the money in small amounts over an extended period.
  • Receiving proceeds from a successful drug deal to assist a drug dealer hide the cash.
  • Buying a vehicle or home in cash using proceeds of a drug deal.

To secure a guilty verdict against you under HS 11370.9, the prosecution team must prove the following elements of the crime:

  • You engaged, acquired, or received property or money that you were aware or should have known was proceeds of illegal drug sales.
  • You did so with the criminal intent to conceal or hide ownership, control, or source of the funds.
  • The total amount of money you laundered was $25,000 or more.

Upon a conviction under this statute, you should expect felony or misdemeanor penalties, depending on your criminal record and the facts of your unique case. A misdemeanor HS 11370.9 violation conviction will carry a fine of up to $1,000 and a jail term of not more than one (1) year. However, if your offense is a felony, a conviction under this statute will result in the following possible penalties:

  • Up to four (4) years of jail time.
  • A fine amounting to up to $250,000 or double the amount of money you laundered.
  • Felony probation.

  1. Transportation or Sale of Controlled Substances

According to HS 11352, it is a felony offense to transport, sell, furnish, import, or administer a controlled drug substance, including particular prescription drugs such as:

  • Vicodin.
  • Codein.
  • Oxycontin.

Examples of instances that could attract drug charges under this statute:

  • A university student sells meth to his/her classmates.
  • A woman gives peyote that he/she has cultivated to friends at a party.
  • An unemployed father agrees to move heroin from one place to another using a bike for a local drug dealer.

Elements of the crime that the prosecution team prove at trial to obtain a conviction against you under HS 11352 include:

  • You sold, furnished, imported, administered, transported, or gave away controlled drug substances.
  • You were aware of the controlled drug's presence.
  • You were aware the substance in question was a controlled drug substance.
  • The substance was in large quantity or usable amount if your offense involves the transportation or sale of controlled substances.

For a first-time offense, a felony HS 11352 violation conviction will carry the following potential sentence:

  • A fine amounting to up to $20,000.
  • Up to five years of jail time.
  • Felony or formal probation.

Potential Defenses Your Attorney Can Use to Challenge a Felony Drug Offense

With the legal assistance of a reliable attorney, you can prepare several defenses to challenge the allegations you are up against at every stage of the criminal court process for the best possible outcome. While every case is unique, the following are common defenses that could work to your advantage to obtain a desirable outcome.

You are a Victim of Police Misconduct

Unfortunately, police misconduct issues are not uncommon in drug-related cases. For instance, if the charges you are up against involve the sale of controlled drug substances, you can argue that you are a victim of police misconduct if:

  • The police officer arrested you because of your ethnic origin or skin color.
  • The police officer planted evidence the prosecutor has against you.
  • The police officer forced or coerced you to confess.

If this defense argument works in your favor, the court will drop or reduce the drug charges you are up against to a less serious offense.

The Police Obtained Evidence The Prosecutor Has Against You Unlawfully

The court could dismiss or drop your drug charges if your defense attorney can prove that you are a victim of illegal searches by the police. The judge will drop all the evidence obtained if the arresting officers searched your property without a court-obtained search warrant. That means that particular evidence will not apply against you at trial, weakening the prosecutor's case against you.

The Police Entrapped You to Commit the Offense

Your defense attorney can also argue that you are a victim of entrapment by the police. That means you would not commit the offense if the police officer did not harass, lure, or coerce you to do it.

With an aggressive and seasoned defense attorney, these defenses could work to your advantage to obtain the best attainable outcome on the drug charges you are up against.

Find a Criminal Defense Attorney Near Me

As you can see above, a drug-related charge could affect your reputation and compromise your freedom for several years, especially if your offense is a felony. If you or a loved one is in trouble with the law as a suspect in a drug-related case, our seasoned defense attorneys at The LA Criminal Defense Law Firm can help.

Call us at 310-935-1675 to discuss each detail of your unique drug-related case with our credible defense attorneys, wherever you are in Los Angeles.