Health and Safety Code 11359 makes it a felony in California to sell marijuana. If convicted, a person could potentially be sent to prison for up to 3 years.
Just about every possession for sale of marijuana case begins with the suspect being arrested with a some quantity of marijuana in his or her possession. In determining if the suspect is in possession of the marijuana for purposes of selling it, the police look at a number of factors present at the time of arrest. These factors are commonly referred to as “indicia of sales.”
- Amount of marijuana: In general, police officers erroneously equate that the larger the amount of marijuana is a suspect’s possession, the more likely it is they must be selling it. The fact is, it is not uncommon for marijuana users to purchase and keep large quantities of marijuana (their stash) at any given time, especially if it’s really good weed. Nonetheless, police officers always say that the amount is more than any one person would keep for personal use.
- Packaging: More telling than the amount of marijuana is the manner in which it is packaged. For example, two suspects could be caught possessing the same amount of marijuana. One suspect has it individually packaged in baggies of a similar amount while the other suspect has it all in one bag. In this situation, it is entirely possible that the suspect who has it individually packaged could be charged with possession for sales while the other suspect charged with simple possession pursuant to Health and Safety Code 11357.
- Large Amounts of Cash: If the suspect is stopped and also found in possession of large amounts of cash, the police will assume the cash was earned by way of selling marijuana. How the cash is broken down is also telling. For example, if the suspect has $1000 in cash in the form of $100 bills, there is a strong argument that the cash is legitimate. However, if that $1000 is all in small bill denominations such as lots of $1s, $5s, $10s and $20s, then the officer will undoubtedly believe it was earned though drug sales.
- Hand-to-Hand Sales: If the suspect is actually observed selling marijuana …game over. Police will often set up surveillance at a location that has become known as a place where users and sellers congregate in hopes of catching people in the act of selling marijuana.
- Location of Arrest: If the suspect happens to be arrested in a location where police believe users and sellers congregate, they will use this fact to justify an arrest for possession for sale of marijuana. Absent the presence of a number of other factors, the location of arrest is not necessarily all that telling.
- Absence of Smoking Device/Paraphernalia: As an argument against possession for personal use, police and prosecutors often point to the fact that no smoking device or paraphernalia was found at the time of arrest. This argument, of course, assumes that marijuana users have no self control and have to be high at every moment of the day ..that a marijuana user couldn’t possibly leave home without their bong, rolling papers, pipe, etc. Ridiculous.
- Measuring Device: If the police locate some form of a measuring device, such as a scale, this will be seen as a strong indicator that the suspect is selling marijuana.
- Pay/Owe Sheets: This is an address book or list of names of people who may have paid for or still owe money for the marijuana.
All of these factors do not have to be present to be charged with a marijuana possesion for sales case. As a matter of fact, let’s make no mistake, police and prosecutors will always twist the facts in any way they can to justify a charge for possession for sale of marijuana. However, an experienced drug charge lawyer can often help them see the light. Possession for sale of marijuana is not an offense that, on its face, is eligible for any of California’s drug diversion programs. That being said, sales cases are often greatly overcharged and can be knocked down to simple possession. Ultimately, that depends on the facts of the particular case. Therefore, it is imperative to contact an lawyer qualified to handle these types of drug cases.
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