A tremendous amount of investigation goes into drug cases, especially since the decriminalization of marijuana possession. Law enforcement still takes a very strong stance that any controlled substance is considered criminal, so law enforcement may try to say that the amounts of marijuana or narcotics suggested that it was possessed with the intent for sale, because it was not possible for that person to consume that in a day, a week or a month, so they must be possessing it for sale. They will also try to point out things like the money that was recovered during the investigation, or packaging materials like plastic bags, scales, text messages and communications with other people that may suggest distribution or that the item was being possessed for sale.
The problem, however, lies in the fact that law enforcement often tends to overstate their case. I have handled many cases that in no way, shape or form suggested that the marijuana or other narcotics were being possessed for sale, even in the face of evidence that the person was personally using the narcotics, such as the presence of some smoking device or other way to ingest it; the police still tend to take these investigations to prosecutors without taking a thorough or detailed look at it. They will sometimes file these cases as felonies under a theory of possession with intent to sell or illegal transportation or something along those lines, when it really just involved someone with a substance abuse problem who needed to be treated differently.
The lines can get extremely blurry between just possession versus possession for sale or transportation because it is lawful to possess marijuana for personal use in California. Additionally, when the medicinal marijuana laws were first passed, there were limitations on the number of plants someone could have, whether they were mature versus immature plants etc. The case of The People vs. Kelly has now done away with that distinction; a person can have as many marijuana plants as they want, without limitation as long as it was for personal use, and they have a recommendation from a prescribing physician.
This does not mean someone who possessed it for personal can’t be accused of other drug-related crimes; they can’t drive while under the influence of marijuana, and then claim they have a prescription; that would still be a crime. They also can’t drive with a large amount of marijuana in their vehicle because they won’t be in their home, where they can keep it for personal use, and it can be assumed that they were transporting it for sale or other purposes, even with a medicinal marijuana recommendation.
The line becomes more and more blurred in the context of people who are members of a collective or cooperative that was licensed in California, in which certain parameters have to be met, showing that they were providing some service for the collective or cooperative. People have recommendations and they are members of that collective or cooperative, and it can become extremely confusing, not just for the general public, but even for law enforcement, to try to draw conclusions regarding whether something was unlawful or otherwise requires a close examination of the facts and presentation of evidence and educating judges, juries, and even prosecutors as to the law, which requires a long dialogue, especially on larger cases, in which these larger investigations were taking place regarding whether the marijuana was being possessed for personal use, whether it was properly prescribed and whether it was a cultivation type of case; it can be extremely confusing although generally speaking, there is no limit for personal use at this point.
However, this does not stop law enforcement from conducting some sort of an investigation and drawing their own conclusions because the amount was so large; I have handled many cases like this, including one recently in which they discovered a very large amount of marijuana at the person’s home and drew the conclusion that it was possessed for sale, even though there were smoking devices and no evidence of distribution whatsoever.
A drug recognition expert, or DRE, is simply a law enforcement officer who has been through certified training to be able to testify as to the recognition of drugs or the effect of drugs on certain individuals, to confirm whether or not they were under the influence. Prosecutors utilize DREs in court, because they have more experience and training than a typical law enforcement officer. DREs can identify the physical symptoms displayed by the person that may suggest they were under the influence of a certain narcotic, or identify whether a drug was possessed for sale versus personal use.
For more information on Possession For Sale And DRE, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (626) 714-3112 today.
Copyright©2022, The Law Offices of Paul S. Geller, P.C. All Rights Reserved.