Prescription Drug Offenses and Penalties in California
Understanding the California Laws Relating to
Prescription Drug Offenses May Help You
Avoid an Arrest and/or Conviction
OFFENSES AND PENALTIES
DOMENIC J LOMBARDO
SAN DIEGO CRIMINAL DEFENSE LAWYER
Due in large part to the “War on Drugs” that has been going on in the
United States for several decades, the laws relating to dispensing and using
prescription drugs have changed considerably. Today, doctors,
pharmacists, and patients must be aware of the various laws and
restrictions relating to prescription drugs to ensure that they do not run
afoul of them. Unfortunately, people often fail to realize that possession of a
prescription drug for which they do not have a valid prescription is treated
in much the same way as possession of traditional “drugs” such as
marijuana, cocaine, or heroin. The days when a friend could “share” a pain
pill with you are gone, replaced with laws that could land you in jail for
having a single pill in your possession. Understanding the California laws
relating to prescription drug offenses may help you avoid an arrest and/or
DEFINING “CONTROLLED SUBSTANCES”
The United States Controlled Substances Act defines the term “controlled
substances” to include both illegal drugs and prescription drugs. California
Health and Safety Code, or CHSC, Sections 11350-11356.5 cover criminal
offenses relating to the possession, sale, transport, distribution, and
manufacturing of controlled substances. CHSC Section 11054 provides an
exhaustive list of the controlled substances referenced in Sections 1135011356.5. Numerous medications commonly prescribed by a physician are
included on the controlled substance list because of their chemical makeup. Medication commonly prescribed for pain, such as Lortab or Tylenol 3,
are opiate based, meaning they are a controlled substance. Sleeping pills,
such as Ambien, are also classified as a controlled substance. Likewise,
prescription sleeping pills such as Suprenza and Adipex make the
controlled substance list.
THE CONTROLLED SUBSTANCE LIST
Understanding California controlled substance laws requires a basic
understanding of the controlled substance list found in CHSC Section
11054. For purposes of this article, the list can be broken down as follows:
Sub-section (b) – Opiates
Sub-section (c) – Opium derivatives
Sub-section (d) – Hallucinogens
Sub-section (e) – Depressants
Sub-section (f) --- Cocaine
POSSESSION OF A CONTROLLED SUBSTANCE IN
In California, simple possession of a controlled substance found in any
category except some in sub-section “e” is a felony. If convicted you face up
to a year in the county jail, 16 months in prison, or a two to three year
prison sentence, depending on the specific facts of the case. You may also
be placed on probation in lieu of, or in addition to, a jail sentence as well as
a fine and court costs.
POSSESSION /PURCHASE WITH INTENT TO
California law makes possession of a
controlled substance, or purchase of a
controlled substance, with the intent
to sell the substance a felony. If
convicted, you face a prison term of
two, three or four years in a state
penal facility. You will also likely serve
a term of parole when released as well
as owe fines and costs.
TRANSPORTATION, IMPORTATION, SALE
Transporting, importing, selling or furnishing a controlled substance is also
a felony in California which carries a two, three, or four year prison
sentence along with a period of parole, fines, and costs if convicted.
THE STATE’S BURDEN IN A CONTROLLED
In a criminal prosecution the state always has the burden to prove that the
defendant is guilty. In other words, if you are charged with a criminal
offense, you do not have to prove your innocence. For the state to prove its
case, the prosecutor must prove each element of the crime. For example, if
you are charged with possession of a controlled substance in California, the
prosecutor must prove EACH of the following:
You had the ability to use or control a controlled substance for
which you had no legal right to possess.
You knew or were aware of the presence of the controlled
You knew of the substance’s nature or character as a controlled
You had a sufficient amount of the controlled substance for it to be
ACTUAL VS. CONSTRUCTIVE POSSESSION
One issue that often comes up in drug cases, particularly when prescription
drugs are involved, is actual possession vs. constructive possession. When a
defendant is found in actual possession of contraband (in this case drugs) it
is much easier for the state to prove its case; however, what happens more
often is that a controlled substance is found somewhere inside a vehicle, a
home, or even a purse instead of actually on the defendant. In these
situations the state must rely on the concept of constructive possession. To
prove that you had constructive possession of a controlled substance the
state must prove that you had “intent to maintain dominion and control
over the contraband”.
COMMON DEFENSES TO A CONTROLLED
If you have been arrested and charged with possession of a controlled
substance only an experienced California criminal defense attorney can
review the specific facts and circumstances of your case and advise you
what possible defenses you may have; however, there are some common
defensive strategies employed in controlled substance cases, including:
Valid prescription – if you had a valid prescription for the
controlled substance it is a defense; however, you must not have had
a larger quantity of the drugs than what you were prescribed.
No possession – if the state’s case is based on constructive
possession you may be able to argue that you did not possess the
Lack of knowledge – if, for instance, a friend gave you something
for your headache and you had no idea it was a controlled substance,
or your friend lent you a jacket and unknown to you his/her
prescription pills were in the pocket, you may be able to avoid
conviction on the basis of lack of knowledge.
Momentary possession – California allows you to have
momentary possession of a controlled substance if the reason for the
possession is to dispose of, or destroy, the substance.
AVOIDING AN ARREST
If you have been arrested and charged with a violation of one of the many
California controlled substance laws, hiring an experienced California
criminal defense attorney who can employ one of the many available
strategies to avoid a conviction is clearly your best course of action.
Avoiding an arrest in the first place, however, is preferable. Far too many
innocent individuals find themselves on the wrong side of the law because
they did not fully understand the laws relating to prescription medications.
To avoid finding yourself in this situation, consider the following:
Never accept any prescription medication from a well-meaning
friend, family member or co-worker.
Never offer to give someone else prescription medication of yours.
Always carry your prescription medication in the prescription bottle.
If you take a prescription medication on an ongoing basis,
particularly if it is a narcotic, hold on to an empty prescription bottle
as an “extra” in case you wish to carry only a few pills with you when
you go on vacation or you wish to separate your pills for any reason.
Keep prescription medication locked up where others cannot reach it.
Always check the pockets when someone loans you a jacket or coat.
Thoroughly search through a purse before using it if it has been put
up for some time or if someone else gave it to you to ensure there are
no stray pills at the bottom or in a pocket.
Never agree to “hold” someone else’s medication for them in your
purse, pockets, or vehicle even if it is in the proper prescription bottle.
Destroy known controlled substances immediately if you are trying to
prevent someone else from abusing them or you do not ever plan to
take the medication yourself.
While some of these tips may seem a bit extreme, the laws relating to
prescription medications warrant following them to avoid becoming
entangled in the criminal justice system.
California Legislature, Health and Safety Code Section 11350-11356.5
FindLaw, Health and Safety Code Section 11054
About the Author
Domenic J Lombardo
Domenic J. Lombardo, (Attorney at Law)
graduated from University of California,
Los Angeles (U.C.L.A.), earning a B.A. in
Economics-Business, before graduating
with his J.D. from University of California,
Hastings School of Law. He passed the
California Bar Examination on the first
try, and immediately began practicing as a
criminal defense attorney in San Diego,
Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public
Defender from 1991 to early 1996.
Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as a a sole
practitioner dedicated entirely to the defense of individuals accused of crimes. And
while Mr. Lombardo works as the primary attorney for all his cases, he does have a
team of investigators, forensic consultants, and paralegals to call on to help achieve
the best possible result in every case.
When he is not working, Mr. Lombardo is an avid family man, triathlete, and world
The Law Office of Domenic J Lombardo
The Executive Complex 1010 Second Ave., Ste. 1820
San Diego, CA 92101