What are the Defenses to the Possession of a Controlled Substance or Illegal Drug in California?

There are various defenses, both substantive, and procedural, to a possession charge:

1) Lack of knowledge – To possess a controlled substance or illegal drug a person must have knowledge of the controlled substance’s presence, the nature of the drug, and the fact that it is restricted.

2) Insufficient quantity- Possession requires more than a trace amount and must consist of a useable amount, which is enough to cause some expected drug effect although not necessarily the full effect.

3) Statutory exception for prescriptions.1

4) Medical use of marijuana.2

5) Temporary possession for disposal – Disposal must be immediate and not forced. Any delay generally prevents the use of this defense.

6) Exclusion of Evidence

This defense consists of motions based on the 4th amendment to the United States Constitution which claim that evidence seized in violation of the illegal search and seizure provisions contained in that amendment, is rendered inadmissible against an accused as the result of that violation.3

7) Identify of Informants

Informants are used in various ways by the police. Generally, their identity is not revealed to protect them, and there are provisions within the law that permit this. However, the prosecution must disclosed the identity of a confidential informant if that person’s testimony is material to the guilt or innocence of an accused person, failure to do so will compel a court, upon a motion by the defense, to dismiss the charges.4

8) Entrapment.

This defense is based on the fact that a person committed a crime, whose planning and implementation, was initiated by police, and not the person accused of the commission of the offense. Had not the police undertaken either to persuade, or sometimes fraudulently induce, the person to commit the crime, which they were not otherwise predisposed to do, they would not have committed the criminal act. It remains a difficult defense to prove since the elements are not easy to establish, and the burden is on the defendant to prove them. In only a very few cases is entrapment actually proved. The most difficult element is the one requiring that the accused had no predisposition to commit the crime. If it is shown that a person appeared to benefit from the criminal conduct, then that generally precludes the assertion that there existed no predisposition to commit the criminal act.5

9) Exception for Overdose.

Where a person is experiencing a drug-related overdose and is in need of medical assistance, it is not a crime for that person to have used a controlled substance, or to be in possession for personal use of either a controlled substance, or drug paraphernalia.6

It is also not a criminal violation for a person rendering assistance to another experiencing a drug related overdose to possess for personal use a controlled substance or drug paraphernalia when that possession is related to the person seeking medical assistance.7

The definition for purposes of this law of a drug-related overdose is an immediate and serious medical condition resulting from a person using one or more controlled substances either alone or in conjunction with alcohol in excessive quantities which may cause death, a serious medical conditions, injuries, or disabilities.8





1 Section 4060 of the California Business and Professions Code
2 Section 11362.5 of the California Health and Safety Code
3 Section 1538.5 of the California Penal Code
4 People v. Tolliver (1975) 53 C.A.3d 1036
5 Sorrells v. United States (1932) 287 U.S. 435; Sherman v. United States (1958) 356 U.S. 369; Lopez v. United States (1963) 373 U.S. 427; People v. Benford (1959) 53 C.2d 1; People v. Perez (1965) 62 C.769
6 Section 11376.5(b) of the California Health and Safety Code
7 Section 11376.5(a) of the California Health and Safety Code 8 Section 11376.5(e) of the California Health and Safety Code