Cocaine Possession: Charges, Penalties and Defense
Cocaine is a powerful and addictive stimulant made from coca leaves, which are native to South America. The coca leaves have been ingested for thousands of years, making it one of the oldest known psychoactive substances. Cocaine is commonly known as coke, C, snow, blow, flake, or when combined with heroin, a speedball. When it is in water-insoluble base form, it is commonly referred to as crack.
Purified cocaine was used in many tonics and elixirs in the early 1900s as a remedy for a variety of illnesses. Coca extract was also used in nineteenth-century Coca-Cola, who marketed the drink as a headache remedy and stimulant. As an illicit drug, it reached the height of its popularity in the 1980s and 1990s.
Cocaine works by blocking the removal of dopamine from the synapse, causing an increase in dopamine and temporary euphoria. Cocaine users also report increased energy, talkativeness, mental alertness, and temporary decrease in hunger and fatigue. A national survey in 2012 found that 4.7 million Americans had used cocaine in the past year, up from 3.9 million people in 2011.
The U.S. Controlled Substances Act has been used as the federal standard for drug legislation since its implementation in 1970. Under the Controlled Substances Act, there are five classifications of illicit drugs, called schedules. Schedule I drugs have the highest potential for abuse and psychological or physical dependence, and Schedule V substances have the lowest potential for abuse and contain limited amounts of narcotics.
Cocaine is a Schedule II controlled substance, which means:
- It has a high potential for abuse
- It is considered dangerous
- It has a currently accepted medical use with severe restrictions
- Abuse can lead to severe psychological or physical dependence
Other drugs in this category include methamphetamines, methadone, oxycodone, Adderall, and Ritalin.
Cocaine is listed as a Schedule II controlled substance because it has some sort of medical use, albeit a limited one. Cocaine hydrochloride solution can be used as a topical local anesthetic in the mouth, throat, and nasal cavities, and it is especially useful for constricting blood vessel and reducing blood flow. But there are now better local anesthetics on the market, and cocaine is rarely used for medical purposes in the U.S.
Cocaine base (crack) is a Schedule I controlled substance. Schedule I drugs have no currently accepted medical use and carry a high potential for abuse and severe dependency. Other Schedule I drugs include heroin, LSD, ecstasy, and peyote.
Legal defenses in each particular case will vary based on the amount of cocaine, the nature of the possession, and more. An experienced criminal defense lawyer can offer several defenses on your behalf, including:
- Lack of knowledge: The law requires that you willfully and knowingly possessed cocaine. Coming into accidental contact with cocaine without any knowledge of illegal activity could be grounds for a lack of knowledge defense.
- Lack of power and intent to control: In cases of constructive possession, the prosecution must prove that you intended to control the cocaine. Even if you were aware of the presence of drugs, if you never intended to come into contact with it and you had no power or control over the cocaine or the situation, it could lay the groundwork for a lack of power or control defense. This includes being involuntarily drugged by someone else.
- Lack of use of narcotics: If law enforcement officers never found you in possession of cocaine and did not subject you to a blood test to confirm the presence of drugs, your lawyer could argue you were not under the influence. Many other physiological conditions can resemble drug use, including illness and fatigue.
- Police misconduct: If law enforcement officers violate California laws of search and seizure or California entrapment laws, your case could be thrown out on grounds of police mistakes and misconduct.
This is not an exhaustive list of legal defenses against cocaine charges. Contact Blair Defense if you find yourself in this situation and want to know the extent of your options.
Penalties, Punishment, and Sentencing
Being under the influence of cocaine is illegal under Health and Safety Code 11550. If your physical or mental abilities are impaired in any detectable manner at the time of arrest, you can be charged with being under the influence of cocaine. Being under the influence alone is a misdemeanor, punishable by up to one year in county jail and a small fine; however, certain defendants can participate in drug diversion programs in lieu of jail time.
Personal possession of cocaine violates California’s Health and Safety Code 11350. Possession for personal use as a misdemeanor is punishable by up to one year in county jail and a possible fine of up to $70. Possession as a felony is punishable by 16 months or two or three years in prison and a fine.
Possession or purchase of cocaine for sale is a felony under Health and Safety Code 11351. The intent to sell cocaine carries heavier legal consequences than possession for personal use, and the amount and type of cocaine will dictate the individual penalty. Those found guilty of possessing or purchasing with intent to sell are not eligible for drug diversion programs.
Possession with intent to sell:
- One kilogram or less of cocaine: punishable by two, three, or four years in state prison and a maximum $20,000 fine.
- One kilogram or less of cocaine base: three, four, or five years in prison and a maximum $20,000 fine.
- More than one kilogram of cocaine or cocaine base: punishable by an additional 3-25 years in prison and fines up to millions of dollars
Selling or transporting cocaine violates Health and Safety Code 11352. This provision includes anyone who transports cocaine, imports it into the state, sells it, furnishes it, administers it, gives it away, or offers to do any of the above. This felony is punishable by three, four, or five years in state prison. This term is increased to three, six, or nine years if the drugs are transported through multiple counties. These sentences, like the previous ones, are subject to increase based on the amount of cocaine involved.
Drug Diversion Programs:
Proposition 36 and Penal Code 1000 are drug diversion programs. These programs allow nonviolent offenders to avoid prison time through rehabilitation. Drug diversion programs are limited to certain offenders, like those who purchased or possessed drugs for purely personal uses.
Drug diversion programs are not available to those who are:
- simultaneously charged with a separate misdemeanor offense not involving drug possession
- simultaneously charged with a felony
- convicted of selling or transporting cocaine
These programs are designed to reduce the number of nonviolent drug offenders in California prisons. The drug diversion system targets those who could benefit from personal rehabilitation, rather than sellers or distributors of narcotics.
Contact a defense lawyer to find out if one of these programs will work in your situation.
Driving under the influence of cocaine violates California Vehicle Code 23152. If the cocaine has “so far affected the nervous system, the brain, or muscles as to impair an appreciable degree the ability” to operate a vehicle as a normal person would, you could face a misdemeanor charge and be ineligible for a drug diversion program.
Selling cocaine in certain protected areas violates Health and Safety Code 11380.7. Trafficking cocaine within 1,000 feet of a drug treatment facility, rehabilitation center, or homeless shelter is punishable by an additional year in prison. A defendant can argue many mitigating factors under this provision, including that the defendant was homeless, lacked resources for the necessities of life, was addicted to a controlled substance, was exploited by a more culpable person to commit the crime, or was solely interested in maintaining a supply for personal use.