Arrested for Drug Possession?

San Diego County Criminal Defense Attorney On Your Side

For first offense simple possession of drugs (assuming there are no non-drug offenses also charged), defendants are eligible for drug diversion which requires a guilty plea then a delay of 18 months for sentencing. If the defendant successfully completes an out-patient drug treatment program and has no new drug violations during the eighteen-month period, the case is dismissed prior to sentencing resulting in no conviction.

Additionally, the law provides that the booking records are to be ultimately sealed and destroyed. The only downside to drug diversion is that non-compliance with the "program" can result in actual sentencing, since the participant has already pled guilty.

Other less desirable options are "drug court" and Prop. 36, which require a higher level of court scrutiny and greater defendant participation. All of these programs allow the defendant to avoid custody and the stigma of a criminal conviction if successfully completed.

Possession of methamphetamine or concentrated cannabis are felonies, but are "wobblers" that can be filed as misdemeanors, whereas "hard" narcotics like cocaine and heroin can only be filed as felonies.

If the quantity of drugs exceeds that for personal use and there is some evidence indicating prior sales of the drug, such as packaging equipment, scales, pay and owe sheets, and large amounts of cash on hand, the DA will charge "possession for sale" which is a more serious offense for which the various drug diversion programs are not available.

Defending Drug Possession Charges

In a significant number of drug cases there may be a viable issue as to the legality of the law enforcement search which led to the discovery of the drugs. In the great majority of drug cases the search is conducted without a search warrant, which can be a legal search provided the situation justifying the search meets certain criteria set forth by the U.S. Supreme Court. Searches conducted pursuant to a search warrant are presumptively valid, but sometimes can be attacked by demonstrating that there is insufficient probable cause in the supporting affidavit. Most drug search warrants are based on information supplied by a confidential informant, whose identity will not be revealed as long as the informant is not a material witness on any of the charged offenses.

It is important to remember that if you accept drug diversion you essentially waive any objection to the legality of the police search which uncovered the drugs.