Possession of controlled substances is a serious crime by itself, making its penalties even more severe if you are charged with possession of drugs and an operable or loaded firearm. The crime is a felony that attracts at most 48 months of prison confinement and $10,000 in monetary court fines. However, with the help of an experienced drug crimes defense attorney, you can negotiate for formal probation in place of incarceration. Apart from the legal penalties, a conviction has collateral ramifications like loss of firearm rights and a criminal history.

Thankfully, a charge for a Health and Safety Code (HS) 11370.1 violation does not make you guilty. You will have the opportunity to defend yourself. Therefore, having a competent attorney is critical to protect your rights, gather evidence, and craft solid defense strategies for a fair verdict. Here are the details of HS 11370.1 that will help you to build a strong defense.

Legal Definition of Possession of Controlled Drugs While Armed

Per HS 11370.1, it is unlawful, notwithstanding HS 11355 and HS 11377, to illegally possess the following controlled drugs while armed with a loaded or operable firearm:

  • A substance with a cocaine base.
  • A substance containing cocaine.
  • Substances holding methamphetamine.
  • Substances holding heroin.
  • Crystalline substances holding phencyclidine (PCP).
  • Hand-rolled cigarettes dosed with PCP.
  • Liquid substance or liquid material with PCP.

When prosecuting the case, the DA is not required to show you utilized the firearm or threatened to use it to secure a guilty verdict. Having the controlled drugs and the loaded gun alone is sufficient for a criminal charge and a possible guilty verdict. An HS 11370.1 violation is a felony punishable by lengthy prison incarceration.

Crime Elements

The DA must prove all the facts of HS 11370.1 violation beyond moral certainty. The elements they should demonstrate are:

  • You exercised control over usable amounts of controlled drugs.
  • You were aware the substances were in your presence.
  • You understood the character of the substances as controlled.
  • The amount of substance you exercised control over was usable.
  • While exercising control over the substance, you were armed or possessed an operable firearm.
  • You were aware the operable firearm was for offensive or defensive use.

You risk HS 11370.1 violation charges and simple possession simultaneously without contravening double jeopardy statutes. When charged with the two offenses, the simple possession charge is not used as a lesser charge that the prosecutor uses if they do not secure a conviction for controlled drug possession while armed.

Let us discuss these elements further:

Meaning of Possession

Possession means that you exercise control over the drugs. The DA will secure a guilty verdict if they prove you had control over the substances. The law defines two forms of possession: constructive, actual, and joint. Actual possession means the substances were in your control and that you had them on your body, in the clothes you were wearing, or in a purse you were holding. The DA should show that the substances were in your purse or pockets when proving this possession type.

Constructive possession is where you exercise control over controlled substances, although they are not in your immediate person. The prosecutor should show that even though the substances were not in your person, they were in a location you could easily retrieve from and restore control, like a vehicle trunk or a drawer in your room or home. Besides, if a person is storing substances on your behalf, the actions still amount to constructive control.

The other kind of possession is joint. It is an extension of joint and constructive possessions as it entails two individuals exercising control or the right to control controlled drugs. During prosecution, the DA should show you and another party purchased and stashed drugs in a shared space. If at least an individual controls the substances, it is joint possession.

Controlled substances being close to you or with someone near you does not make you guilty. The prosecutor should identify the person who had contact with or control over the drugs. The evidence required includes photos taken during the arrest or testimony from the arresting officer or eyewitnesses.

Usable Quantity Definition

The quantity of the substances you exercise control over must be usable. You are not guilty if the substance is drug residue or traces, as these are unusable. However, the amount should be sufficient to snort, swallow, or smoke. The court is not interested in knowing whether the quantity was enough to cause impairment.

Meaning of Armed

Another element of the crime the prosecutor must demonstrate is that you were armed with an operable or loaded gun that you knowingly possessed for offensive or defensive reasons. The law does not require the DA to prove you were holding the firearm to prove you were armed.

For instance, your neighbor contacts the police to make a noise complaint against you. The police knock on your door, and you open it without knowing it is law enforcement. The officers find you with a loaded gun on the table alongside cocaine. Under the circumstances, you are armed even if you are not holding the gun.

Definition of a Loaded Firearm

A loaded gun has a cartridge or shell in a position where it can be shot. If the cartridge or bullets were not in the firearm during arrest, it was not loaded.

Let us refer to the example of your neighbor reporting a noise complaint. If, when the police knock on your door, you have removed the bullets or cartridge from the gun, you will not be considered armed, and therefore, your actions are not a violation of HS 11370.1 because the gun was not operable or loaded.

Knowledge Definition

Proving that you exercised control over the controlled substances alone is insufficient to secure a guilty verdict unless the DA shows that you know of the drug’s presence and their character as controlled. Whether you knew about the chemical composition or name of the substances is irrelevant. What is relevant to the court is that you knew that a substance was outlined under the Controlled Substances Act in your presence. If you reasonably believed the substances were something else like flour, you are not guilty because the element of knowledge is not satisfied.

Besides, the DA must demonstrate you were aware a gun was at your disposal for offensive or defensive reasons, whether or not you knew it was operable. Proving a defendant's knowledge is normally daunting for the prosecutor because there is little direct evidence. The DA depends heavily on circumstantial evidence to prove this aspect of the case. The proof the prosecutor will produce to show you were aware the firearm was loaded or the nature of the substance in your presence includes:

  • Your concession that you were aware of the character of cocaine, heroin, or PCP you were controlling.
  • A self-incriminating statement you made to the arresting officers or other people about the substance’s nature.
  • Proof of your use of the substances or firearm.
  • Prior criminal history of a related offense.

If the prosecutor cannot demonstrate knowledge, the court will drop the charges.

Your case is not hopeless because you can contest each of these facts with the help of an experienced attorney. The work of the defense attorney is to put reasonable doubt or poke holes in the prosecutor’s assertion. For instance, it is usually challenging for the prosecutor to show a weapon is operable. Therefore, your attorney only needs to instill doubt in the minds of the jury regarding the gun’s operability by claiming it was not operable or you lacked knowledge that it is loaded.

Also, you can assert that you were unarmed, as the firearm you exercised control over was not easily accessible and thus unavailable for immediate defensive or offensive purposes. When this aspect of the case is unfulfilled, you are not guilty of HS 11370.1 violation.

Legal Penalties for Controlled Substance Possession While Armed

An HS 11370.1 violation is a felony. If the DA secures a guilty verdict against you, the legal penalties the court will impose are:

  • No more than $10,000 in monetary court fines.
  • 24, 36, or 48 months of prison confinement.

A proficient defense attorney can negotiate with the judge for a felony probation program instead of serving a prison sentence. If the court agrees to a felony probation program, you will serve twelve months in the Los Angeles County jail. After the jail time, you will begin serving formal probation that lasts for 36 to 60 months. The probationary terms you must abide by during this duration are:

  • Routine drug testing and counseling.
  • Community hours like the Caltrans roadside work.
  • Frequent meetings with your probation or supervising officer.
  • Property or personal searches without the need for search warrants.
  • Avoid crime or substance abuse during the period you are free.
  • Other reasonable conditions, depending on your case’s circumstances.

If you adhere to these probationary terms for the provided timeline, the court will dismiss your case. However, a violation of the conditions could result in probation revocation, after which the court will send you to prison to serve your initial sentence.

You should know that in cases involving possession while armed, drug diversion is unavailable as the offense is a felony. Therefore, you do not have the option to avoid confinement through drug rehabilitation, treatment, or counseling.

Legal Defenses for Controlled Substance Possession While Armed

An arrest for an HS 11370.1 violation does not automatically mean you will end up with a guilty verdict. The law provides every defendant with a chance for a fair trial where a bench or jury hears the case and examines evidence and testimonies to issue a ruling. With the opportunity to share your side of the story, you can challenge the accusations to prevent or reduce the legal penalties.

Nevertheless, criminal cases are complex, and if you are to defend against your charges successfully, you must have the legal guidance of an experienced criminal lawyer. The legal representative will collect evidence, organize it, and craft solid defenses to convince the court to issue a fair verdict. When hiring an attorney, you must find one with experience in your specific case and who has successfully defended individuals with charges like yours in the past.

The best defense strategies your attorney will mount for a favorable verdict are:

  1. You Were Unaware of the Controlled Drugs’ Presence

When the police arrest you with controlled drugs in your possession, it is up to the DA to prove that you were aware of the substances' presence. If you did not exercise control over the substances and someone planted them without your knowledge, you are innocent. Proving knowledge is usually a daunting task for the prosecutor, giving you a chance to poke holes in their assertion and ensure that their arguments do not satisfy the evidentiary standard of criminal cases, which is beyond moral certainty or reasonable doubt.

  1. You Lacked Knowledge of the Character of the Substances

If the substances were in your possession and you cannot deny being aware of their presence, you can claim that you did not understand their nature. If you believed the substances were flour or legal, you are not guilty. You can only be convicted if you know the nature of the drugs as controlled.

Other defenses include:

  • Asserting that you were unaware of the substance’s presence.
  • You were unaware the firearm was packed or loaded.
  • The substances were discovered in an unlawful search.

You can contest the accusations by claiming that the evidence the prosecutor has is inadmissible in court and, therefore, should be dismissed as it was obtained unlawfully through an illegal search. If police conduct an unlawful search and use the evidence to build a case against you, the court will dismiss the evidence if it was obtained unlawfully.

In cases where there is no valid search warrant, police require probable cause that you possess drugs while armed to make an arrest. Your attorney can lodge a motion to suppress evidence challenging the reason that led the officers to believe you were committing a crime. If the judge grants the motion, all the evidence obtained will be dismissed, forcing the DA to offer a favorable plea deal or drop the accusations.

Related Offenses

Offenses that can be charged alongside or in place of HS 11370.1 are:

HS 11352

Per HS 11352, it is illegal to ferry or furnish controlled substances with the intent to sell. The activities that the statute prohibits include:

  • Selling drugs.
  • Sharing or giving out drugs.
  • Furnishing controlled substances.
  • Administering controlled substances.
  • Transporting with intent to sell.

If you were armed during these unlawful activities, you risk an HS 11352 charge alongside HS 11370.1.

A contravention of HS 11352 is a felony that attracts these penalties:

  • At most $20,000 in court fines.
  • Three, four, or six years in prison.
  • 36, 72, or 108 months of prison incarceration if you moved the drugs across two counties.

HS 11350(a)

California HS 11350(a) criminalizes possession or exercising control over controlled drugs, including street narcotics and legal prescription drugs devoid of a valid prescription. The offense is also called simple possession or personal use possession.

The prosecutor files the offense as a misdemeanor that attracts informal probation, at most twelve months of incarceration and court-imposed fines of no more than $1,000.

The offense relates to HS 11370.1 in that your attorney can convince the prosecutor to file simple possession charges if there is no evidence to prove that you were armed during the arrest. Simple possession is a lesser charge because it is a misdemeanor, making you eligible for drug diversion. Therefore, with proper representation, you can compel the court to lower your HS 11370.1 charges to simple possession. After the reduction, you can convince the judge to impose a drug diversion program, and upon successful completion, the court will drop the charges.

HS 11351

Under HS 11351, it is a felony to exercise control over controlled drugs with intent to sell. A violation of HS 11351 is ineligible for drug diversion as it is a felony, and its penalties are:

  • 24, 36, or 48 months of prison confinement.
  • Formal probation with a mandatory twelve months of jail confinement.
  • At most, $20,000 in monetary court fines.

When you have a criminal history or substances in your possession are cocaine or heroin, your penalties will include three to thirty years of prison incarceration and financial court fines ranging from $20,000 to $8,000,000.

PEN 25400

PC 25400 prohibits concealed carry, which refers to carrying a hidden firearm in your vehicle unless you have a license. The offense is a wobbler, meaning it can be charged as a felony or misdemeanor with a maximum confinement of 36 months.

In the absence of aggravating circumstances, a PEN 25400 violation is a misdemeanor that attracts no more than twelve months of incarceration and court fines of $1,000.

If the gun was loaded and you were not the registered owner or you possessed it illegally, the offense is a felony that carries 16, 24, or 36 months of prison incarceration and court fines of at most $10,000.

Find a Drug Crimes Defense Attorney Near Me

Controlled drug possession while armed is a severe crime that is harshly punished upon conviction. Therefore, when you face the charges, you should consult with an experienced criminal defense attorney for legal guidance. At The LA Criminal Defense Law Firm, we will assist you in contesting the charges to avoid the life-changing consequences. Call us at 310-935-1675 for a no-obligation case evaluation.