California Drug Laws: Heroin

Heroin is a highly addictive drug derived from morphine, which in turn is made from the seeds of certain types of poppy plants. It’s illegal everywhere in the United States, but it has been increasing in popularity in recent years. How do California drug laws treat heroin-related crimes?

Heroin Use Is On The Rise

In recent years, heroin usage has dramatically increased throughout the United States.  In fact, the National Center for Health statistics reported that the U.S. death rate from heroin overdoses nearly tripled between 2010 and 2013.  California has been no exception.

Despite the recent heroin epidemic, Democratic and Republican politicians throughout the United States have been lobbying for alternatives to incarceration for non- violent drug offenders.  Even President Obama weighed in on the issue stating that: “ rather than spending billions of dollars- taxpayer dollars- on long prison sentences for nonviolent drug offenders…we could save money and get better outcomes by getting treatment to those who need it.”  Consequently, many state legislatures have lightened the criminal penalties for drug possession.  California lightened its criminal sentencing for drug possession in November 2014 with the passage of Proposition 47.

Heroin Laws

Heroin and other narcotics are illegal under federal and state laws.  Heroin is treated as a Schedule I substance under the California Uniform Controlled Substance Act due to its high risk for addition and abuse.  In California, defendants convicted of heroin possession can face misdemeanor or felony charges depending on the circumstances of their case. Those charged with misdemeanor heroin possession might be eligible for certain treatment programs.  However, the penalties for dealers and traffickers are much more serious.

Penalties For Heroin Possession

Heroin possession is illegal in the State of California.  Persons found guilty of possessing a usable amount of heroin will be prosecuted under Section 11350 of the California Health and Safety Code.   Section 11350 criminalizes possession of heroin for personal use.  The government is not required to prove you actually intended to use the drug, only that you possessed it.  There are 3 types of possession actionable under California law: actual possession, constructive possession, and joint possession.

Misdemeanor Heroin Possession

In most cases, heroin possession will be prosecuted as a misdemeanor.  However, depending on the specifics of your case, your criminal background, and the decisions of the prosecutor and/or judge, you could face felony charges.  In general, first-time, non-violent offenders will be charged with a misdemeanor.  Those charged with misdemeanor heroin possession can face any combination of the following sentences:

• Up to 364 days in county jail
• Up to $1000 in fines
• Probation
• Parole
• Random drug testing

In certain cases, the Judge might determine that a defendant would benefit more from a drug diversion program than from incarceration and/or other traditional forms of sentencing.  Drug diversion programs are not available for all defendants and eligibility depends largely on the circumstances of your case and judicial discretion.  The two most common drug diversion programs are Proposition 36 and PC 1000.  In general, the programs are not available to defendants if the underlying arrest involved violence, threats of violence, possession of a firearm, or the sale of drugs. You’re may also be ineligible for diversion if you’ve been convicted of other drug charges in the past.

Felony Heroin Possession

Persons charged with felony heroin possession can be incarcerated for up to three years.  Drug diversion programs are not available for defendants facing felony charges.  However, persons incarcerated for felony heroin possession before November 2014 might be eligible for resentencing under Proposition 47. Resentencing is not automatic and certain defendants, including violent felons, habitual felons, and registered sex offenders will not qualify.

Penalties For Selling Heroin

Defendants charged with selling or trafficking heroin face much harsher sentences than those charged with possession.  Sections 11351 and 11352, respectively, govern the prosecution of selling and trafficking heroin in the state of California.  The prosecution does not have to prove that a person actually sold or intended to sell the drug with direct evidence.  Oftentimes, defendants are charged with selling heroin based on circumstantial evidence.  In ambiguous cases, the Court often looks to the presence of the following factors when determining whether an individual was selling or attempting to sell heroin:

• Individual baggies
• Bindles
• Scales
• Large sums of cash
• Weapons

Defendants charged with selling heroin typically face either one of the following sentences, depending on the circumstances of their case:

• Probation with up to a year in county jail, or
• Up to four years in prison

Penalties For Trafficking Heroin

Individuals who are charged with transporting and /or selling heroin within one county or across county lines may be charged with “trafficking” heroin. Defendants convicted with trafficking heroin could face:

• Probation with up to 1 year in county jail, or
• Up to 5 years in prison, or
• Up to 9 years in prison if drugs were transported across county lines

Defendants might also be charged with a $50,000 fine in certain trafficking cases involving the:

• Transportation or sale of heroin equal to greater than 14.25 grams; or
• Solicitation of minors to possess, sale, or transport heroin; or
• Transportation or sale of heroin within the confines of certain establishments.

Laws concerning the prosecution of heroin have changed in recent years.  Before the enactment of Proposition 47, all persons found guilty of heroin possession faced felony charges.  Now, first-time non-violent offenders in California will likely face misdemeanor possession charges while violent and habitual criminals will typically face felony charges.  However, defendants convicted of selling and/or trafficking heroin face felony charges with the possibility of up to 9 years of incarceration and a $50,000 fine.

Other Charges

Even if you’re not carrying any heroin on your person, you may be charged with being under the influence of heroin. This charge is possible if you appear to be under the influence in any manner, physically or mentally. This is a misdemeanor, punishable by up to a year in jail. However, most cases will be eligible for diversion instead of jail.

These are just the charges you may face under California drug law – you may also be charged separately under federal law for trafficking heroin and other drugs.

California Attorney Search

If you’ve been arrested on a heroin charge, you need the help of an experienced local attorney to protect your rights. Our Attorney Referral Service will make your California attorney search simple.
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