What does it mean to be in Unlawful Possession of a Controlled Substance in California?

A controlled substance is a drug which requires a prescription from a licensed physician, or one that is unlawful for any purpose. In order to be unlawfully in possession of a controlled substance the following elements are necessary.

  1. A specified controlled substance; in a sufficient quantity; and in a usable form.
  2. Possession may be physical or constructive, exclusive or joint.
  3. Knowledge of the fact of possession and of the illegal character of the substance.

Possession for Sale.

To violate the offense of possession with intent to sell there must be evidence establishing the purpose of the possession is to facilitate its sale, mere knowledge that the substance is to be sold is insufficient.1

Proof may be established based on a large quantity of the substance, which “affords a reasonable inference of possession for sale.”2

The Meaning of to Possess

In order to be in possession of a controlled substance you must have the right to access and to control the substance; it is in a quantity usable for consumption or sale; you have the knowledge of its presence; and know that is a drug that is restricted.3

Two or more people can be jointly in possession of a controlled substance.4

Constructive Possession

To be in possession does not necessarily require the controlled substance to be in the immediate presence of a person, or on their person, or in their home, or in their car. If it is in some place that is immediately accessible, and which is under the person’s controlled then it is deemed in their constructive presence, and in the possession.5  A rented storage facility is a common example.

Possession Inconsistent With Legal Possession

While a person may be in legal possession of a drug by virtue of have a prescription from a licensed physician, if the possession at some point is not consistent with its intended purpose then it becomes illegal. An example is where a caregiver received medications for the person that was being treated and that person dies, and the caregiver is found in possession of the drugs 30 days later, that possession becomes unlawful.6

Discarding drugs to avoid arrest or prosecution

An attempt to dispose or conceal a drug does not relieve a person from liability, and will not provide a defense. Where officers approached and a defendant who dropped or threw it away, or where a person dropped drug for a customer to pick, in either case is insufficient to divorce the person from possession.7  However drugs swallowed or consumed either by injection or inhalation are not considered possessed once inside the body.8

Temporary Possession for Disposal.

A defense to possession can be based on transitory possession. Such a defense must show momentary or transitory possession of contraband for the purpose of disposal. The abandoning requirement is that possession be “fleeting,” which means an extended duration no matter what the circumstances will negate this defense.9  The disposal must be voluntary, and not based on a forced act.10

Sufficient Quantity.

The amount of drugs that must be possessed is a usable quantity, generally a question of fact which must be shown by the evidence. Mere traces of a substance is not considered a usable amount. There must be enough so that it can be used as a drug. That does not mean the quantity be sufficient to achieve the full drug effect expected. The chemical analysis of the material possessed need only establish the existence of a controlled substance, a qualitative analysis establishing the purity of the controlled substance is not required to establish the existence of the illegal substance.

Facts supporting possession

Access to property alone is not sufficient to establish a possessory right. This issue arises most often where there is an allegation of constructive possession. Merely being in the same place, whether it is a room, a home or a car where drugs are located is insufficient to establish a possessory right.11

Possession while armed

If a person who unlawfully possesses any amount of cocaine base, cocaine, heroin, methamphetamine, or PCP while armed with a loaded, operable firearm is guilty of a felony. The sentence if convicted is commitment to state prison for 2, 3, or 4 years [or probation], and the person is also ineligible for drug diversion.12





1 In re Christopher B. (1990) 219 C.A.3d 455
2 People v. Grant (1969) 1 C.A.3d 563
3 People v. Palaschak (1995) 9 C.4th 1236
4 People v. Crews (1952) 110 C.A.2d 218
5 People v. White (1958) 50 C.2d 428
6 People v. Ard (1938) 25 C.A.2d 630
7 People v. Belli (1932) 127 C.A. 269
8 People v. Spann (1986) 187 C.A.3d 400
9 People v. Martin (2001) 25 C.4th 1180
10 People v. Paz (2010) 181 C.A.4th 1413
11 People v. Redrick (1961) 55 C.2d 282
12 Sections 11370.1(a), (b) of the California Health and Safety Code; Section 1000 of the California Penal Code