Drug Crimes

There are three main categories of drug offense cases under California law:

Drug Crimes may include:

• Possession for Personal Use
  
  
• Possession with Intent to Sell
  
  
• Manufacture or Cultivation of Drugs

Possession for Personal Use

The most common type of drug offense charged under California law is possession for personal use. It is charged under a number of different Penal Code sections, and can include marijuana, cocaine, methamphetamine, designer drugs, and a variety of other types of drugs.

Attorneys at McGregor & Ernenwein have been successfully defending our clients in drug possession cases for almost twenty years. In every drug possession case, we will carefully investigate the cause and circumstances of the charges against you.

We will carefully investigate the scene of the arrest, including any statements made by police officers or witnesses at the scene. Our attorneys painstakingly examine all relevant drug tests and laboratory results for problems with the testing procedure itself or for scientific inconsistencies in the results. In cases where a blood test is taken, we will obtain an order from a judge allowing us to test the client's blood sample ourselves, in an independent laboratory.

We will work to prepare the strongest possible defense and attack the prosecution's case against you. There are a variety of different defense and settlement options available to an attorney with experience in defending drug cases. At the Law Offices of McGregor & Ernenwein, we have a solid record of obtaining acquittals, reductions, or dismissals for our clients in drug possession cases.

Actual and Constructive Possession

Obviously, the first issue in any drug possession case is whether or not the defendant actually possessed the drugs in question. Under California law, possession can be either "actual" or "constructive."

Actual possession refers to actual physical possession of the narcotic by the person who was arrested. Constructive possession means that the narcotics in question were found in an area where the defendant has access, or otherwise exercises control (such as a bedroom drawer, or a high school locker).

In drug cases where narcotics are not actually found on the defendant's person, strong legal and factual arguments can be made that there is insufficient evidence of "possession." If the prosecuting attorney cannot sustain the statutory element of "possession" in a drug case, they should be unable to sustain the charges against you.

Search and Seizure

In many cases, police officers have seized the drugs in question from the defendant without a warrant. In the United States, a warrantless search and seizure of drugs from a defendant is presumed to be invalid. The prosecuting attorney must demonstrate to the court why the seizure of the drugs was valid despite the lack of a warrant.

An experienced defense attorney can exploit almost any warrantless search and seizure issue to the defendant's benefit. Very often, police officers will conduct drug searches in such a way as to violate the accused person's Constitutional rights.

In many drug cases, our attorneys will file a motion with the court to suppress all drug evidence found by the police based on an illegal and warrantless search. These "motions to suppress" are made under Penal Code section 1538.5, and our attorneys have a solid record of success in arguing these motions.

"Usable Quantity"

In many cases, a defendant is arrested with relatively small or trace amounts of narcotics. In such cases, strong arguments can be made that the amount of drugs found was not a "usable quantity," and that the case should therefore be dismissed. The amount of drugs that constitute a "usable quantity" depends largely on the type of drug in question.

Deferred Entry of Judgment (or D.E.J.)

Generally, a first offender in a drug possession for personal use case is eligible for a "deferred entry of judgment." This is a legal technique under California Penal Code section 1000 that is frequently used to resolve drug possession cases.

In a deferred entry of judgment, a defendant will plead guilty of the charged offense before the court, but no conviction is entered on his or her criminal record. Rather, the case is continued for a period of up to 18 months.

During that 18-month period, a defendant must take drug awareness and education classes for 6 months. Also, during that 18-month period, the defendant must not sustain any further arrests or convictions. If the defendant successfully completes the 18-month period, then the case will be dismissed in its entirety.

The deferred entry of judgment option may seem simple, but in reality, it can be a complicated procedure. To enter into a deferred entry of judgment, a defendant must be found eligible for the program.

First, the defendant cannot have any other offenses in the case coupled with the original drug charge. For instance, if a defendant is charged both with possession of marijuana and with driving under the influence of marijuana, then he or she will generally be found ineligible for a deferred entry of judgment. A skilled defense attorney can sometimes convince a prosecutor or judge to dismiss a charge that disqualifies a defendant from the deferred entry of judgment program.

Even assuming a defendant is otherwise qualified for deferred entry of judgment, the district attorney, the probation office, and the judge must find that the defendant is appropriate for the deferred entry of judgment program.

The attorneys at the Law Offices of McGregor & Ernenwein have successfully obtained deferred entry of judgment settlements for hundreds of our clients over the past eighteen years.

Proposition 36 Program

Another alternative involves a Proposition 36 (or "Prop 36") drug program. Proposition 36, enacted by the voters of California in 2000, mandates drug treatment, rather than prison, for the vast majority of nonviolent drug offenders. Defendants in drug possession cases who are ineligible for the deferred entry of judgment program are often eligible for a Proposition 36 program.

Proposition 36 drug treatment programs exist as either outpatient or inpatient programs. To be eligible for a Proposition 36 program, a defendant must first be convicted of a nonviolent drug possession offense. These offenses include drug possession, drug use, transportation of drugs for personal use, and being under the influence of drugs.

A defendant is ineligible for Proposition 36 when they are convicted, in the same proceeding, of any non-drug-possession related felony, or of a misdemeanor that is unrelated to the use of drugs.

A defense attorney can sometimes convince a prosecutor or judge to dismiss a charge that disqualifies a defendant from the Proposition 36 program. It is also sometimes possible to sever the counts alleged against a defendant, so that a defendant can be separately sentenced on the non-drug conviction, and still receive a Proposition 36 sentence on the drug charge.

Other Sentencing Alternatives

In drug cases involving possession for personal use where a defendant is ineligible for the deferred entry of judgment program, there are still a variety of other options available. Some other alternatives include probation, private drug treatment programs, county- or state-run drug treatments programs, or some other sort of alternative treatment program that does not involve jail time.

Click here for more about drug possession.

Possession for Purposes of Sale

Drug possession for purposes of sale can include the possession of marijuana, cocaine, methamphetamine, designer drugs, or numerous other types of drugs. In possession for sale cases, the prosecution is alleging that the defendant possessed a quantity of drugs with the intent to sell those drugs to others. These cases are often much more serious than possession for personal use cases, and the defendant will often be facing county jail time or incarceration in state prison.

Reducing Drug Possession for Sale Charges

In any possession for sale case, the central legal argument to be made is that the drugs were not possessed by the defendant with intent to sell, but only for personal use. Once the charge is reduced to a "possession for personal use" charge, the defendant will often be eligible for deferred entry of judgment, a Proposition 36 program, or another more lenient sentencing alternative.

An experienced attorney will examine all of the circumstances of the arrest in a possession for sale case, and prepare a strong argument that the drugs were possessed merely for personal use. In this regard, our attorneys will carefully investigate the police reports in the case describing the scene and circumstances of the arrest. The property reports will be scrutinized for any positive or useful information.

The main factor that the courts and prosecutors will generally consider in these cases is the presence or absence of drug sale equipment, including cash, pagers, scales, packaging (i.e. Ziploc bags), accounts and ledger books (usually referred to as "pay/owe sheets"), and a large quantity of drugs. If these materials are present at the scene, but are not stored together, than an attorney can argue that they were not used for drug sale purposes.

The attorneys at McGregor & Ernenwein have had substantial experience over the past eighteen years in obtaining reductions for our clients charged with possession of drugs for sale. It is our experience that prosecutors in Los Angeles County and Orange County can be over-zealous in charging possession for sale cases. If we are able to convince a prosecutor or judge that your possession for sale case should more properly be charged as a simple possession for personal use case, then we will obtain a much better result for you.

Manufacturing or Cultivation of Drugs

Cases involving the manufacture of drugs generally involve crystal methamphetamine (or "meth"), or rock or base cocaine. These cases are always very serious, and could result in county jail or state prison sentences for the defendant.

Manufacturing

To convict a defendant of manufacturing methamphetamine or cocaine, a prosecutor must usually demonstrate the presence of a "drug lab," or some basic equipment (including base chemicals) that is used for the manufacture of drugs.

Our attorneys are very familiar with the components that usually constitute a "drug lab." We will carefully examine all of the evidence offered against you, including police reports and property reports that will detail all the components of the alleged "drug manufacturing equipment."

Because drug manufacturing is such a serious charge, prosecutors will be held to a high standard of proof. Our experienced defense attorneys will create a powerful case to attack the prosecution's allegations against you. In our experience, drug manufacturing charges can often be reduced to simple drug possession, or to other related offenses that do not carry the same ramifications as a drug manufacturing charge.

Cultivation

Drug cultivation is most often charged in marijuana-related cases. Often, cultivation for personal use will still allow for a deferred entry of judgement settlement, and ultimate dismissal of the case. Cultivation of marijuana for sale will be treated more harshly. It can be charged as a felony, and the defendant may be facing incarceration in state prison.

In such cases, an attorney will attempt to convince the prosecution that the marijuana was being cultivated only for personal use, and not with intent to sell. There are several ways to demonstrate that the drugs were only cultivated for personal use. McGregor & Ernenwein have almost twenty years of experience in successfully defending drug cases, and in our experience, a cultivation for sale charge can often be reduced to a cultivation for personal use charge.

The Law Offices of McGregor & Ernenwein have been defending the rights of the accused since 1987. If you or a loved one has been accused of a drug charge, call an experienced drug crimes defense attorney at McGregor & Ernenwein today for a free consultation.