Unfortunately, heroin has become very popular in recent years – primarily because of the opioid epidemic. Quite a few heroin users started using prescription opioid painkillers – Fentanyl, OxyContin, Percocet, etc., -- before using heroin. Health and Safety Code Section 11350 is the statute that applies to possession of heroin. HS 11351 and HS 11352 statutes deal with Possession for Sale and Transportation for Sale, respectively. Heroin is typically cheaper and can be easier to obtain than prescription opioids. Possession of Heroin is a misdemeanor as a result of Prop 47; however, the consequences of a conviction are severe.
If the district attorney charges someone with Possession of Heroin, they must prove the following beyond a reasonable doubt:
- The defendant unlawfully possessed heroin;
- The defendant knew of its presence;
- The defendant knew of the substances nature as controlled substance; AND
- The heroin was in a usable amount.
A Usable amount means the following: a quantity that is enough to be used by someone as heroin. In other words, trace or debris is not considered a usable amount, and cannot constitute possession.
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 11350 can be charged if someone has the right to control the heroin or has control over the heroin, either personally or through someone else.
There are many defenses to an allegation of HS 11350. It begins with the search. Was the search lawful? That is, was it conducted with a valid warrant consistent with the Fourth Amendment of the US Constitution? At Kern Law, APC, we know how to challenge the admissibility of evidence if it was obtained in violation of the US Constitution.
HS 11350 is a serious charge and carries significant consequences. If you or someone you know has been charged or arrested with Possession of Heroin, contact my office today. We provide a free, confidential consultation.