California Health and Safety Code Section 11370.1(a) prohibits someone from possessing a loaded firearm while in possession of a controlled substance; for example, Methamphetamine or Heroin. Oftentimes, the charge is connected with Possession for Sales, HS 11378, 11351, or Transportation for Sales, HS 11379. But HS 11370.1(a) does not have to be connected with any sales or transportation charge.
For someone to be convicted of violating HS 11370.1(a), the District Attorney must prove the following:
- The defendant unlawfully possessed a controlled substance;
- The defendant knew of its presence;
- The defendant knew of the substance’s nature or character as a controlled substance;
- The controlled substance was in a usable amount;
- While possessing that controlled substance, the defendant had a loaded, operable firearm available for immediate offensive or defensive use; AND
- The defendant knew that he or she had the firearm available for immediate offensive or defensive use.
Defenses:
There are many defenses that may be applicable to an HS 11370.1(a) charge. Was the search that led to the drugs and firearm being found lawful? That is, was it supported by a valid warrant? If not, was there an exception to the warrant requirement? If the search was unlawful under the 4th Amendment the drugs and/or firearm may be inadmissible in court. Was there a 5th Amendment violation, meaning was a statement made that led to the drugs or firearm being found, that was in violation of one’s Miranda rights. Did the person have knowledge of the drugs or firearm that was found or was the person in possession of either of these items? There are other defenses that are case-specific and may be beneficial to a successful defense of the case.
If you or someone you know has been arrested or is under investigation for violation of HS 11370.1(a), contact Kern Law, APC today. We provide a free, confidential consultation.