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If you or a loved one has been charged or is being investigated for a drug crime such as 11379 of the Health and Safety Code you need an experienced Attorney that has dealt with the often complex and difficult area of the law. 

As a former probation officer, deputy district attorney, and a criminal defense attorney with more than 14 years of experience I have the knowlege and experience to handle these type of cases. 

 

FIRST LETS LOOK AT THE STATUTE

1  Defendant transported sold, furnished, administered, or gave away a controlled substance

2. Defendant knew of the controlled substances presence 

3. Defendant knew it to be a controlled substance. 

Many times how this will occur is someoene is driving down the street and the police are tipped off that the car contains narcotics.  The police pull the car over a dog sniff reveals the presence of the drug or in in the case of the Highway Patrol, the person signs a waiver of this Fourth Amendment rights at the scene in and searches the vehicle finding the illegal substances lets say Methemphatamine for example.  

At this point several things will happen including the police will attempt to speak with both the police and tell them where you got the drugs etc. 

 

CAN THE CASE BE PROSECUTED BY THE FEDERAL GOVERNMENT UNDER MANDATORY MINIMUMS

The short answer to that question is yes depending on the amount of illegal drugs found.  Say for example its usually about two pounds for a kilo.  The more weight you are in possession of the more of a chance you have of being prosecuted by the Federal Government throught the US Attorney.  If that occurs you would be subject you to mandatory minimums of at least 10 years in a Federal prison. 

PROSECUTION IN STATE COURT

Usually in state court what is called a weight enhancement will be added to your charge.  

11370.4B1  ENHANCEMENT METHAMPHETAMINE OVER 1 KILO

So lets say you are charged with that enhancement which adds a 3 year enhancement to your sentence you would be facing a maximum of Seven  years in local prision. 

ARE YOU ELIGIBLE FOR LOCAL  PRISON

The answer to that is yes.  Under the provisions of 1170H you are eligible for local prision commitment. 

DOES THE WEIGHT ENHANCEMENT MAKE YOU INELIGIBLE FOR LOCAL PRISON

No it does not this is a crime where you could still serve local time even with the weight enhancement. 

This has a very big impact on the sentencing choices for the Judge the Judge could give what is commonly referred to as a split sentence.  A split sentence means for example that you would get say a 3 year term of 36 months you would server 18 in and 18 on post release community supervision through local probation.  

There is a presumption for a split sentence, and the split does not have to be 50 percent in and 50 percent on supervision it could be 2 years in and 4 on post release community supervision for example. 

CAN THE WEIGHT ENHANCEMENT BE STAYED BY THE JUDGE 

Yes the weight enhancment can be stayed by the Judge and if he does could make the sentence much lighter usually in the case where the amount was very close to the limit.

CAN YOU RECIEVE PROBATION 

Yes you can recieve probation the court would have to find unusual circumstances, and then weigh the probation factors under penal code section 4.414 if after both finding unusual circumstances or the interest of justice would prevail and after going through the factors in 4.414 the court may enter a grant of probation even with the weight enhancement not being struck.  This depends on all the factors of the case and is frankly where an experienced Attorney is needed to show the Judge whey this case should be treated differently.  Such as low amount of weight, first time offender, and a lot of other fators.  

As you can see this is a complex area of law and if you have questions give us a a call at 559-441-1418.

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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