The basics of California's drug possession laws and penalties.
Updated August 11, 2023
All states, including California, regulate and control the possession of controlled substances, though each state differs in its exact definitions and the penalties for drug possession. This article reviews California's classifications of controlled substances and the penalties for illegal possession for personal use. Different penalties apply to possession for sale and sale crimes.
How Does California Classify Controlled Substances?
California divides controlled substances into five schedules—Schedules I to V. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule V drugs are the least dangerous and the least addictive. Below are some examples of drugs placed into each schedule.
Schedule I includes drugs such as heroin, LSD, cannabis, mescaline, and psilocybin.
Schedule II includes drugs such as raw opium, oxycodone, morphine, cocaine, and fentanyl.
Schedule III includes drugs such as ketamine, pentobarbital, and anabolic steroids.
Schedule IV includes drugs such as flunitrazepam, diazepam, and zolpidem.
Schedule V includes buprenorphine and therapeutic drugs containing low doses of narcotics combined with nonnarcotic active medicinal ingredients.
(Cal. Health & Safety Code §§ 11053 to 11058 (2023).)
What Are the Penalties for Illegal Drug Possession in California?
In California, most illegal drug possession offenses, with a few exceptions, carry the same general penalty regardless of their schedules. Penalties are primarily based on the type of drug and a defendant's criminal history.
Penalties for Illegal Possession of Drugs Formerly Classified as Narcotics or Restricted Dangerous Drugs
Defendants convicted of illegal possession of drugs formerly classified as narcotics or restricted dangerous drugs will face either a misdemeanor or felony penalty. Narcotics include drugs such as heroin, morphine, and other opiates. Restricted dangerous drugs include stimulants, like meth, and hallucinogens, like LSD and psilocybin.
Felony charges apply when a defendant has a prior conviction for a serious or violent felony or any offense that requires sex offender registration. In all other cases, misdemeanor charges apply.
The misdemeanor penalty carries a maximum penalty of up to 364 days in jail. A felony carries an incarceration term of 16 months, 2 years, or 3 years. If a judge places a felony offender on probation, the probation terms must include a minimum fine of $1,000 for a first offense or $2,000 for subsequent offenses. The judge may order community service hours if the defendant can't pay the minimum fines.
(Cal. Health & Safety Code §§ 11350, 11377 (2023).)
Penalties for Illegal Possession of Benzodiazepines and Other Designated Substances
California law has a separate penalty section for illegal possession of drugs such as Xanax (alprazolam), Valium (diazepam), and Ativan (lorazepam). Illegal possession for personal use of any of the 18 listed drugs can result in a misdemeanor or infraction. A misdemeanor conviction can carry up to six months of jail time and a $1,000 fine. Infractions are fine-only offenses with a maximum $250 fine.
(Cal. Health & Safety Code § 11375; Cal. Penal Code § 19.8 (2023).)
Penalties for Illegal Possession of Marijuana and Concentrated Cannabis
California permits adults age 21 and older to possess up to 28.5 grams of marijuana flower and up to 8 grams of concentrated cannabis. Possession of more than these amounts by anyone 18 or older carries a misdemeanor penalty of up to six months in jail and a $500 fine. Most underage possession offenses are infractions.
(Cal. Health & Safety Code § 11357 (2023).)
Will You Receive Jail Time for Illegal Drug Possession in California?
Not necessarily. California law provides several alternatives to jail for persons charged with nonviolent drug possession offenses. These alternatives include pretrial diversion, mandatory probation and drug treatment (Prop. 36), and drug courts. These programs focus on drug education and treatment options for those using drugs for personal use.
Each program has different eligibility requirements, including disqualifying prior convictions. For those who qualify and successfully complete the program, the court may dismiss the charges. The consequences for failing to complete the program or violating a condition will depend on the program the person is in.
(Cal. Penal Code §§ 1000 and following, 1210 and following (2023).)
What Are Possible Defenses to Drug Possession Charges in California?
In drug possession cases, a defense attorney may raise several arguments to challenge the prosecution's case. The prosecutor must prove every element of the case beyond a reasonable doubt.
Lack of Knowledge or Possession
Drug possession crimes generally require proof that the defendant had actual or constructive possession of the drugs and knew what the drugs were. If the prosecutor can't prove the defendant possessed the drug or knew what it really was, this may lead a jury to acquit. For example, a defendant might argue they thought the white pills were aspirin or that they had no idea how the drugs got into their gym bag.
Illegal Search or Seizure
Another common defense strategy in drug possession cases is to challenge the legality of the search that led to finding the drugs. If police conduct an illegal search, the drugs found as a result must typically be excluded. Without evidence of the drugs, the prosecution's case might fall apart.
Good Samaritan or 911 Immunity Defense
California provides immunity from drug possession charges for anyone who seeks emergency help for a drug overdose for themself or another. To receive this protection, the person cannot interfere with emergency responders' work.
(Cal. Health & Safety Code § 11376.5 (2023).)
Talk to an Attorney
If you are charged with drug possession, contact a local criminal defense attorney. Possession charges might seem minor, but a criminal record of drug charges can hurt a person's chances of getting a job or housing. It can also lead to harsher charges in future cases.
