Heroin Possession: Charges, Penalties and Defense

Heroin is an opiate created from morphine, a naturally occurring molecule found in the poppy flower. The term “opiate” refers to any drug or substance with addiction-forming or addiction-sustaining properties. It is illegal to knowingly or intentionally manufacture, distribute, or dispense heroin, as well as possess heroin with intent to manufacture, distribute, or dispense.

The Controlled Substances Act was passed by the U.S. Congress and signed into law in 1970. This comprehensive legislation, part of the Comprehensive Drug Abuse Prevention and Control Act, lays out specific standards and penalties for drug offenses in the U.S.

The act also created five classifications of illicit drugs based on potential for abuse and psychological or physical dependence. Schedule I drugs have the highest potential for abuse and dependence, while Schedule V drugs have the least. The five classifications are:

  • Schedule I: No currently accepted medical use and a high potential for abuse. Includes heroin, LSD, ecstasy, and peyote.
  • Schedule II: High potential for abuse and potential for severe psychological or physical dependence. Includes cocaine, PCP, methamphetamine, methadone, oxycodone, Adderall, and Demerol.
  • Schedule III: Moderate to low potential for physical and psychological dependence. Includes Vicodin, ketamine, anabolic steroids, testosterone.
  • Schedule IV: Low potential for abuse and low risk of dependence. Includes Xanax, Valium, Ambien.
  • Schedule V: Contain limited quantities of narcotics and have the lowest potential for abuse. Includes Robitussin, Lomotil, Lyrica.

As a Schedule I drug, heroin carries more risk and potential for punishment than most other narcotics.

Legal Definitions:

“Using” or “being under the influence of” heroin is illegal under California’s Health and Safety Code 11550 HS. This law states that it is unlawful to be under the influence of controlled substances, “except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances.” As a Schedule I controlled substance, there is no currently accepted medical use of heroin.

Being “under the influence” of heroin requires current use and, in the case of an arrest, use immediately prior to arrest. The law requires you to be under the influence “in any detectable manner,” as determined by law enforcement officials.

However, withdrawals are not an acceptable sign of current drug use; People v. Jones (1987) established that withdrawals are a sign of past drug use and cannot be used to prove a defendant is under the influence of heroin.

Driving under the influence of heroin is defined in a slightly different way. Vehicle Code 23152 prohibits anyone addicted to the use of a drug from driving a vehicle in California (not including those participating in an approved rehabilitation program). People v. Enriquez (1996) established that, in terms of driving under the influence, the drugs must have “so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.”

Being “under the influence” of heroin generally means being affected in any detectable manner, but in terms of a DUI, mental or physical faculties must be impaired to a certain degree and result in some kind of misbehavior.

Legal Defenses:

Criminal defense lawyers can present a variety of legal defenses in cases of heroin use and possession. Here are some of the most common defenses:

  • Lack of knowledge: The law requires that you willfully and knowingly possessed heroin. Coming into accidental contact with heroin 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 heroin. 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 heroin 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 heroin 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 heroin possession charges. Contact Blair Defense if you find yourself in this situation and want to know the extent of your options.

Penalties, Punishment, and Sentencing

Possession of heroin violates California’s Health and Safety Code 11350 HS. This law also governs possession of cocaine, GHB, peyote, codeine, Vicodin, and certain hallucinogenic drugs. Under Health and Safety Code 11350 HS, possession of heroin is a felony punishable by 16 months to three years in state prison or a maximum $20,000 fine.

Possession is split into three categories:

  • Actual possession: You have direct physical control over the heroin, usually when it is on your person. Includes cases when you obviously possessed the drugs shortly beforehand, even if they are not on your person when searched.
  • Constructive possession: You did not have heroin on your person, but it was found in a place that you control, such as your home, vehicle, hotel room, or other location. However, being in close proximity to someone with drugs or in a home where drugs are present is not necessarily enough to prove constructive possession.
  • Joint possession: You and at least one other person share constructive or actual possession.

Possession or purchase of heroin for the purpose of sale violates California’s Health and Safety Code 11351 HS. Possession with intent to sell is a more serious felony than above, and it is punishable by two to four years in state prison and a maximum $20,000 fine. But if the weight of the heroin in question exceeds 1 kilogram, you could be eligible for another 3 to 25 years in prison and millions of dollars in fines (depending on the final weight of the substance). Defendants charged with possession of heroin for sale are not eligible for drug diversion programs unless a plea bargain is negotiated or the court determines the controlled substance was purchased for personal use and not sale.

Selling or transporting heroin violates California’s Health and Safety Code 11352 HS. Conviction for sale or transportation of heroin can result in three to five years in prison, or three, six, or nine years if transported across multiple county lines. A maximum $20,000 fine is imposed, unless the amount sold or transported exceeds 14.25 grams or the defendant has a prior conviction for a controlled substance violation, in which case the maximum fine increases to $50,000. Again, more than 1 kilogram of heroin increases maximum punishment to 3 to 25 years in prison and a multi-million dollar fine.

Being under the influence of heroin violates California’s Health and Safety Code 11352 HS. If your mental or physical abilities are impaired in any detectable manner at the time of your arrest, prosecutors can charge you with violation of the controlled substances law. This qualifies as a misdemeanor, punishable by 90 days to one year in county jail or, in the case of eligible defendants, a drug diversion program is an acceptable alternative.

Drug Diversion Programs

Proposition 36 and Penal Code 1000 are drug diversion programs. These program afford nonviolent offenders charged with drug possession the opportunity to participate in treatment or rehabilitation instead of serving prison time.

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 heroin

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.

Related Offenses

There are several offenses that stem from drug charges in the state of California.

Driving under the influence of narcotics is prohibited by Vehicle Code 23152, in cases that the nervous system, brain, or muscles are impaired and lessen the driver’s ability to operate the vehicle.

Being under the influence while possessing a firearm is a “wobbler” offense, meaning it can be categorized as a misdemeanor or a felony depending on the circumstances. Under Health and Safety Code section 11550, possession of a firearm while under the influence is punishable by imprisonment for up to one year in a county jail or state prison. Each subsequent conviction is an automatic felony, punishable by two to four years in prison. Under California Penal Code 29800 PC, possession or acquisition of a firearm while addicted to heroin is an automatic felony.