Drugs have been used to treat illnesses or as part of religious rituals since ancient times. In the mid-1800s when hypodermic needles were introduced, patients were encouraged to buy and treat themselves with a variety of drugs. As everyone knows, however, the view of drug use has changed with the first narcotics laws being enacted in the 1900s. The federal government in 1970 passed the Drug Abuse Prevention and Control Act, which classified drugs into five categories, listed in schedules, and established regulations and penalties for the misuse of drugs on each schedule.
What are the Drug Charge Penalties and Restrictions?
The most severe drug crime restrictions and penalties involve Schedule I and II drugs.
- Schedule I drugs include those with a high potential for abuse; an absence of any medical use; and are dangerous even under medical supervision. The drug cases involving Schedule 1 include GHB, heroin, LSD, mescaline, marijuana, and peyote.
- Schedule II drugs also have a high potential for abuse as well as severe psychological &/or physical dependency. These drugs include amphetamines, cocaine, methadone, methamphetamine and.opium.
- Schedule III drugs have less potential for abuse and cause a moderate psychological &/or physical dependency. These drugs include anabolic steroids, amphetamine and any product containing codeine, methamphetamine and nalorphine.
- Schedule IV drugs have even less potential for abuse and a limited potential for dependency. These drugs include tranquilizers, most drugs that cause sleep, meprobamate, chloral hydrate and sedatives.
- Schedule V drugs have a low potential for abuse and may cause a limited dependency. These include drugs with small amounts of codeine or other narcotics in them. As with all of the drugs except Schedule 1, there are accepted medical uses. .
The range of San Diego Drug offenses arise from simple possession of narcotics or possession of drugs, to participation in an ongoing criminal enterprise, to manufacture of drugs, distribution of drugs and drug trafficking.
When is Possession of Drugs Charged?
Possession of Drug charges will require the prosecution to prove the defendant knowingly and intentionally possessed a scheduled drug without a valid prescription. In other words, they must prove you knew the drug was a controlled substance and had actual possession or control over the drug, which can be either alone or with another person.
The Federal Court sentencing guidelines, which are only advisory, suggest a maximum of a one year sentence for a first-time drug offense, a maximum of two years in prison for a second drug crime, and a maximum of three years in prison for a third or higher drug offense.In addition, the Guidelines propose a sentence for possession of more than five (5) grams of crack cocaine is increased to a minimum of five years in prison, even for first-time drug offenders. There may also be fines imposed in drug charge cases.
Manufacturing, delivering, drug trafficking &/or possession with the intent to deliver a controlled substance are crimes with escalating penalties and greater sentences.For example, a first offender who is convicted of possession with intent to deliver 100 grams to five kilograms of heroin may receive a minimum sentence of five years in State Prison, and up to 40 years.Distributing controlled substances to persons under 21 years of age, distributing controlled substances near a school, and using persons under age 18 to violate drug laws, are penalty-enhancement crimes and the sentence can double or triple the penalty for distributing a particular amount and type of drug otherwise.A continuing criminal enterprise may be charged when the defendant commits a felony drug violation as part of a continuing enterprise with five or more individuals from which substantial income is obtained. This penalty can be 20 years to life in prison, or even the death penalty if the government can prove beyond a reasonable doubt the offender intentionally killed another person.
Are There Defense Against Drug Charges?
The prosecution must prove their case beyond a reasonable doubt to win a drug charge case or narcotics offense. We employ private investigators to assist in developing our defense. Some drug cases and narcotics arrests are inherently complex and the prosecution may not be able to prove you had “ownership” of the drugs, which means dominion and control. If you select Spital & Associates to represent you, we will argue that your presence in a vehicle, presence at a residence or the scene of the crime, in and of itself is not sufficient for the prosecution to prevail.We will require the prosecution prove you had knowledge of the drug substance or narcotics and its presence, plus there was a usable quantity of narcotics or drugs. If there is a basis to argue the police had insufficient grounds to arrest and/or lacked “probable cause,” we will require the San Diego Superior Court suppress the evidence by filing a “1538.5″ Motion under the Penal Code.
At Spital & Associates, we are experienced San Diego drug defense lawyers. Our goal is to disprove any charges if possible &/or marginalize the prosecution case by emphasizing the facts and circumstances, including the nature and variety of the drug involved, the quantity of the drug and our client’s prior record, if any; also, we will focus on the mitigating factors (see below).
Most states have drug laws that mirror the federal laws. Often, the penalties may be less harsh and more flexible under state sentencing schemes than under the federal sentencing guidelines. As your drug defense lawyer, we will present powerful arguments why a conviction of simple possession of drugs should receive a sentence of drug treatment rather than County Jail time, and we will seek probation for our clients who are first-time offenders in even more serious cases when our presentation and arguments to have the drug charges dismissed and/or reduced have not fully persuaded the court to do so.
There are countless factual and legal circumstances in which we serve as San Diego drug crime defense attorneys to present a persuasive defense and establish the facts in mitigation, which include but are not limited to:
- Actual or potential harm to the public because of the drug crime or narcotics charge;
- Prior overall criminal record, if any;
- Level of compliance with sentence and terms of probation;
- Prior arrests of record of the defendant;
- Number and/or variety of current drug violations or narcotics charges (counts);
- Nature and severity of the drug offenses or narcotics crimes under consideration;
- Rehabilitation and remorse of the defendant charged with a drug crime;
- The time passed since the underlying offense or arrest;
- The financial benefit to the defendant, if any from the charges;
- Whether the conduct of the defendant in the case demonstrated cruelty;
- Whether the defendant was suffering from a mental or physical condition that significantly reduced culpability for the drug offense(s);
- Whether the defendant charged with a drug crime or narcotics offense is ineligible for probation;
- Whether the defendant facing a drug or narcotics conviction made restitution to the victim;
- Whether the charges involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness &/or callousness;
- Whether the defendant was armed with or did not use a weapon at the time of the commission of the drug crime;
- Establishing the defendant did not induce others to participate in the commission of the drug charges or occupied a position of leadership or dominance of other participants in its commission;
- Showing the defendant did not induce a minor to commit or assist in the commission of the crime;
- Presenting argument the defendant was not convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed.
- Proving the manner in which the drug charge was carried out did not indicate planning, sophistication, or professionalism;
- The case did not involve an attempted or actual taking or damage of great monetary value;
- The narcotics offense did not involve a large quantity of contraband;
- The defendant did not take advantage of a position of trust or confidence to commit the crime;
- The defendant charged with a drug or narcotics offense did not engaged in violent conduct which indicates a serious danger to society;
- The defendant has not served a prior prison term; and,
- The defendant was not on probation or parole when the drug charges were committed
What are the Consequences of Drug Charges or a Narcotics Offense?
- San Diego County Jail or state prison
- A permanent criminal record for the narcotics or drug conviction
- Significant fines
- Probation or Parole
- Mandatory AA or NA classes and treatment
- Losing the right to own a deadly weapon
- Unintended consequences such as being unable to keep or obtain employment
- Lifetime revocation of your California Driver’s License
- Being denied a California professional or occupational license or having such a current license suspended or revoked (see http://www.spitalaw.com/practice-areas/professional-licensing/)
Were My Rights Violated?
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Drug offenses and narcotics crimes involve an array of illegal substances, including marijuana, methamphetamine, ecstasy, cocaine, heroin, ketamine and other popular drugs of choice. Punishments by the San Diego Superior Court Judges range in severity from a misdemeanor for possession of narcotics or drugs to a life sentence for other narcotics crimes. At Spital & Associates, we seek DIVERSION on behalf of our clients if they desire; this allows you to participate in a drug program to become clean and sober. Then, we can obtain a dismissal of the charges after you complete the diversion program. If you or someone you know is under investigation &/or has been arrested for Possession of Drugs in San Diego County, Possession for Sale, Cultivation of drugs, Manufacturing, Drug Trafficking, illegal transportation of drugs or any other drug crime, send us an email or call Sam Spital, Managing Attorney at 619.583.0350 immediately. We are available from 7am to 9pm seven days a week. Here are some of the drug crimes we have a proven record of defense, even though lawyers cannot use past performance to predict future results:
- Cultivating marijuana
- Distributing drugs, narcotics and/or controlled substances
- Possession of drugs, narcotics and/or controlled substances
- Manufacturing drugs, narcotics and/or controlled substances
- Possession With Intent to Sell
- Trafficking in drugs, narcotics and/or controlled substances across the border from Mexico or a foreign country
- Transportation and importation of drugs, narcotics and/or controlled substances from Mexico or another country
What are the Drug Sentencing Alternatives?
We advocate for our clients that treatment is a more appropriate and effective method of resolving cases, if the facts and circumstances justify this result. Hence, we seek to avoid a sentence to County Jail or state prison.
We work with several forensic experts to help you achieve sobriety and not punishment. If you have been arrested and charged with a drug-related offense, we will investigate the facts and circumstances to develop and present various alternatives to the prosecution and Superior Court Judge, including Proposition 36, Diversion, and Drug Court on your behalf.
In November, 2000, the California legislature passed a law entitled the Substance Abuse and Crime Prevention Act (Proposition 36). Now, first- and second-time non-violent, simple drug possession offenders have the opportunity to receive substance abuse treatment instead of incarceration. When the San Diego Superior Court agrees to impose a Proposition 36 sentence, it requires treatment for up to one year, with an additional six months of “aftercare” treatment. Rehabilitation may include inpatient and residential drug treatment, as well as outpatient treatment, a halfway house (sober living), and drug education classes.
At the present time, possession for sale, trafficking, production or manufacturing controlled substances do NOT count as non-violent drug possession offenses, and therefore, “Prop 36″ relief is not available.
When Spital & Associates obtains diversion for you, there will be a plea of guilty to the drug charge, but you are NOT sentenced. You must undergo the diversion program, which consists of a number of drug classes. Random drug testing is conducted, and if you have a “dirty” test you will likely be brought back to the court to face serious consequences.
Not everyone is eligible for diversion. However, if you qualify and successfully complete diversion, we will obtain a dismissal of your case and you will avoid a conviction on your record.We will assert your rights throughout the legal proceedings.
The San Diego Drug Court affords drug-addicted defendants a supervised treatment program. There are several drug programs in San Diego County that are separated into different phases. In this environment, you have more freedoms each time you successfully complete a phase of the program. Although the San Diego Drug Court may impose some County Jail time, we will obtain dismissal of your case when the entire program is successfully completed.
If you are being investigated or have been arrested for and are facing drug charges, we want to be your personal San Diego drug defense attorney. Call the Managing Attorney, Sam Spital, at 619.583.0350 or send an e-mail now so that we can help. We are available from 7:00am to 9:00pm every single day of the week
8880 Rio San Diego Drive, Suite 800
San Diego, CA 92108-1642
Downtown Associate Office
Of Counsel – Bill O’Connell, Esq.
110 West C Street, Suite 1300
San Diego, CA 92101-3978
Associates available 7am-9pm daily.
Call (619) 583-0350 or send us an e-mail.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.