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How Can You Defend Heroin Charges?

Posted by Sam Israels | Dec 10, 2022

Various California laws make it a crime to possess, sell, transport, and manufacture heroin. If you have possession of heroin for personal use, it's a misdemeanor offense, but sales and trafficking are felonies with severe penalties.

How Can You Defend Heroin Charges?

Most people know that heroin is a dangerous and highly addictive illegal drug.

It's classified as a Schedule I narcotic, meaning there are no accepted medical uses, and medical professionals can't prescribe it. It's a crime to be under the influence of heroin or be in the same room with a user.

If you are convicted of the misdemeanor crime of simple heroin possession, you might be eligible to participate in a California drug diversion program.

This includes California Proposition 36, which allows someone to get drug treatment and rehabilitation rather than serving jail time.

If you complete the program, then your criminal charges are dismissed.

If you are convicted of a felony heroin-related crime, you face up to a $20,000 fine and up to nine years in state prison. Let's review the specific heroin laws further below.

What Are the California Laws Related to Heroin?

If you are accused of a heroin-related crime, you will probably be charged under one of the California statutes listed below.

Health & Safety Code 11550 HS - Under the Influence of Heroin 

It's a crime to use heroin as it's recognized as a controlled substance.

If the police believe you are under the influence of heroin, you might be facing charges of being under the influence (HS 11550), a misdemeanor crime that carries a maximum fine of $1000 and up to 1 year in county jail.

Driving under the influence of heroin can be charged under Vehicle Code 23152(f) VC, the statute for DUI of any drug.

Being present while someone uses heroin can be charged under Health & Safety Code 11365 VC, a misdemeanor. In other words, it's a crime to even be in the same room with someone using heroin.

Health & Safety Code 11350 HS - Possession of Heroin for Personal Use

Simple possession (HS 11350) means you knowingly and intentionally possessed a controlled substance (such as heroin) for personal use.

It doesn't matter how much heroin you have; just a small "bindle" or amount for personal use is illegal.  

Violations of HS 11350 are misdemeanors with a maximum penalty of 1 year in county jail and fines up to $20,000, but a judge has the discretion to impose probation only.  

However, if you have a prior felony conviction for certain crimes, the heroin case could be filed as a felony that carries up to four in prison.

Health & Safety Code 11351 HS - Possession of Heroin with Intent to Sell

If you are arrested with a sufficient amount of heroin and police believe you were selling it, you could be charged with "possession for sale" of a controlled substance defined under HS 11351.

Health & Safety Code 11351 HS - Possession of Heroin with Intent to Sell

The amount of heroin is not always relevant as actual possession of a small amount could lead to a “sales” charge if the prosecutor has evidence that you intended to distribute it.

HS 11351 is always a felony in California and is punishable by up to 4 years in state prison and up to a fine of $20,000. However, if the amount of heroin exceeds 1 kg, you could be fined up to $8 million and receive 3-25 additional years in prison if convicted.

Health & Safety Code 11352 HS - Selling or Transporting Heroin

If you are accused of selling or transporting heroin, you could be charged with a serious felony crime under HS 11352. The penalties will depend on the amount of heroin and how far it was transported.

For heroin in any amount, the penalties include up to five years in prison, up to nine years if transported across two or more county lines, and a fine of up to  $20,000.

If the amount of heroin is greater than 14.25 grams or there are prior convictions, the fine could increase to $50,000. If you were selling or transporting 1 kg or more of heroin, you are facing a fine of up to $8 million and an additional 3-25 years in state prison.

What Are the Drug Diversion Programs?

Suppose you are charged with a minor heroin offense. In that case, you might be eligible to participate in drug diversion under Penal Code 1000 PC, which includes an approved drug treatment program and is called “deferred entry of judgment.”

If you complete the program, your criminal charges are dismissed, and the records are sealed.

Charges such as misdemeanor possession and being under the influence are eligible for drug diversion, but felony sales and transporting charges are not. Other diversion options exist, such as Proposition 36 and California drug courts.

What Are Some Common Defenses?

A criminal defense lawyer could use one of several common legal defenses to get the heroin charges either dismissed or reduced.

Perhaps we can argue there was an Illegal search and seizure. The allegations could be dismissed if the heroin is discovered on your body due to an unlawful search and seizure by police.

Common Defenses for Heroin Charges in California

Perhaps we can argue that you did not intend to sell. This legal strategy could result in getting your charges reduced to a misdemeanor of simple possession, which could make you eligible for drug diversion.

Perhaps we can argue that you are the victim of entrapment by law enforcement who coerced you into committing a crime you would have otherwise not committed. Maybe we can say there was police misconduct or altering evidence.

Through prefiling negotiations with law enforcement and the prosecution, it might be possible to persuade them not to file formal criminal charges (DA reject).

We can also review whether you are eligible for a California drug diversion program for drug treatment rather than jail time. Once you complete the drug diversion, your charge will be dropped.

Cron, Israels & Stark are based in Los Angeles County. We offer a free case evaluation by phone or by filling out the contact form.

About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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