Heroin has gained popularity in recent years because of opioid abuse involving prescription drugs. Recent studies indicate that nearly 50 percent of young people who inject heroin started abusing prescription opioids before using heroin. The reason is fairly straight forward: heroin is typically cheaper to obtain than prescription opioids.
With the rise in heroin use, charges of possession for sale of heroin have also risen. If someone possesses an amount of heroin and it exceeds personal use – at least according to the DA – he or she will be charged with HS 11351.
To establish guilt the DA has to prove the following:
- The defendant unlawfully possessed heroin;
- The defendant knew of its presence;
- The defendant knew of the substances nature or character as a heroin;
- When the defendant possessed the heroin, he or she intended to sell it;
- The controlled substance was in fact heroin; AND
- The heroin was in a usable amount.
To sale heroin means that the accused is in fact exchanging the heroin for money, services or something of value. Usable amount means the following: a quantity that is enough to be used by someone as a heroin. In other words, trace or debris is not considered a usable amount, and it does not necessarily have to affect the user.
Two or more people may possess heroin at the same time, and possession does not only include actually having the heroin on someone's person. HS 11351 can be charged if someone has the right to control or has control over the heroin.
There are many defenses to an allegation of HS 11351. It begins with the search. Was the search conducted with a warrant? If not was there a warrant exception? An experienced attorney will understand what motions to file to challenge the constitutionality of the search. This is just one example of a defense, and many more may be applicable to your case.
If you have been charged or are under investigation for HS 11351, contact my office today. I will provide a free, confidential consultation.