In November of 2014, voters passed Proposition 47, which reduced all simple drug possession charges from felonies to misdemeanors. [Health and Safety Code sections 11350, 11377, 11357(a)]. Thus, possession of cocaine, heroin, methamphetamine, and other drugs for personal use are now misdemeanor offenses and carry no more than one year in jail. However, the sale or possession for sale of any drug, except marijuana, continues to be a felony offense.
However, even with the softening of drug laws recently, drug convictions can still have life changing consequences if not aggressively defended. Even a misdemeanor drug conviction, such as being under the influence or simple possession, can lead to loss of employment, loss of a professional license, and deportation of the non-citizen. With that said, here is a brief break down of drug crimes in California.
A charge of simple possession of virtually any drug, including the harder drugs such as methamphetamine, heroin, cocaine or PCP can often be successfully dismissed in California. Simple possession, is defined as knowingly having a "useable quantity" of a prohibited substance in one's possession.
There are two ways to get a "simple possession" charge dismissed and completely avoid jail. A first offender can usually obtain "Deferred Entry of Judgment (DEJ)" on a simple possession charge. DEJ may even be available to persons with a prior record under some circumstances. DEJ allows the accused to complete a drug education school and obtain a complete dismissal of the charge.
Persons who successfully complete a DEJ program on a simple possession offense, can petition to seal the record of the case. Penal Code section 851.90 allows a court to order the sealing of the records of the arresting agency and related court files and records after successful DEJ including any record of arrest or detention, upon the written or oral motion of any party in the case.
A second strategy to avoid a jail sentence on a simple possession, for someone with priors, is to participate in what is called "Proposition 36" treatment. Proposition 36 was a California voter initiative that requires that persons with drug cases who don't qualify for DEJ be allowed to participate in treatment rather than go to jail. Successful treatment can lead to earning a dismissal of the drug case. Usually only persons with prior "strike" offenses are ineligible for Proposition 36 treatment.
Transportation of narcotics, possession for the purpose of re-sale, manufacturing or cultivation and conspiracy are the other more serious drug crimes. Some of these charges are punishable with mandatory prison sentences. Most are punishable with three or more years in county jail, after recent re-alignment legislation. These more serious charges necessitate expert knowledge of the law, and the attention of an experienced criminal defense attorney.
For example, on February 22, 2017, attorney Kaestner obtained the complete dismissal of a possession for sale case after bringing a search and seizure motion. This was the second time in 5 years that attorney Kaestner was able to have felony drug charges against the same client completely dismissed on search and seizure grounds. (People v. Erica A., Case No. BA446964; Case no. BA388851.)
In 2019, attorney Kaestner was able to have a felony possession for sale of drugs case dismissed after winning a motion to suppress a car search. (P v. D.S., Case No. TA145927.) This dismissal followed 90 days after another dismissal after a motion to suppress under the Fourth Amendment was granted on another client’s “second strike” gun case in Long Beach. (P v. Z.J., Case No. NA109952.)
In short, an expert criminal law lawyer, with the experience to know the finer points of search and seizure law, can win a "Motion to Suppress" drugs and other evidence seized in violation of the Fourth Amendment of the U.S. Constitution. The Fourth Amendment prohibits certain searches by the police.
It can take years of training and experience in the intricacies of search and seizure law to identify an unlawful search and then convince a judge to dismiss the case.
If you find yourself or a family member arrested for a narcotics offense, call Long Beach's certified criminal law specialist, Matthew Kaestner immediately. To obtain more information about narcotics law or the court system's treatment of a drug arrest, contact Long Beach Criminal Law Specialist Matthew G. Kaestner directly at (562) 437-0200.