When arrested for a drug offense, the prosecutor may charge you with a misdemeanor or felony violation based on the elements making up your case. Felony factors making up a drug offense differ from the misdemeanor elements, as does sentencing. A felony drug crime conviction will carry a more severe sentence than a misdemeanor conviction.

Consequently, if you are charged, you need to be able to tell what to expect by looking at the factors surrounding your case with the help of an experienced drug crimes attorney. This blog explains various factors that will lead the prosecution to charge you with a felony instead of a misdemeanor drug violation.

The Type Or Nature of the Drug In Question

The prosecution can accuse you of a drug offense for possessing, using, selling, transporting, or manufacturing various drugs. Drug laws do not only criminalize these acts with illegal drugs but also prescription drugs acquired without a legitimate prescription. Among the most crucial elements that impact whether or not you will face felony drug crime charges is the kind of narcotic involved in the crime you are charged with.

Regulated substances, including prescription drugs, are categorized into five schedules. The drugs are usually grouped by their effect on the consumer’s physical or mental health.

  • Schedule I regulated substances are usually more severe and produce serious addictive impacts on the person who uses them. These narcotics are mainly for abuse purposes and do not have medical benefits. Examples include heroin, LSD, ecstasy, marijuana (cannabis), methaqualone, and peyote. Abusing these drugs may severely affect the user's mental health. Consequently, criminal charges that involve transportation, sale, possession, or manufacturing of these drugs may be felonies, of course, based on other factors of the crime.
  • Schedule II narcotics have a high likelihood of abuse, and using them can lead to severe physical or psychological dependence and addiction. Drugs under this schedule have some medicinal benefits but can cause harm. Examples include Vicodin, cocaine, meth, methadone, hydromorphone, meperidine, oxycodone, and fentanyl.
  • Schedule III drugs have a moderate to low possibility of psychological and physical dependence. These drugs also have a few medicinal values, but they could cause addiction whenever used incorrectly. Additionally, their potential for abuse is less than Schedule II and Schedule I drugs. Examples include ketamine, steroids, anabolics, and testosterone.
  • Schedule IV controlled substances have a low likelihood of abuse and dependence. Most of them are prescription medications and have significant medicinal value. Examples include Soma, Xanax, Darvocet, Darvon, Ativan, Valium, Ambien, Tramadol, and Talwin.
  • Schedule V narcotics have a lower possibility of abuse and dependence risk than those under Schedule IV. These are mainly prescription drugs used in treating various medical conditions and have significant medicinal value. Most of these drugs are legal, though you must have a valid prescription to acquire them. Examples are Robitussin AC, Motofen, Lomotil, Lyrica, and Parepectolin.

You can be subject to criminal charges for possessing, selling, distributing, or manufacturing drugs under any of the above categories. However, the charges might be serious, likely a felony, if your violation involved a Schedule II or I narcotic. Most drugs in these categories may attract felony criminal charges and serious legal repercussions.

Type of Drug Violation

There are various drug-related violations, including simple drug possession, possession of drugs for sale, sale of drugs, drug manufacturing, drug transportation, drug trafficking, and possession of drug paraphernalia.

Since the passage of Prop. 47, simple possession of any narcotic or prescription drug on the above schedules is considered a misdemeanor. However, not everyone is eligible for misdemeanor charges. Prop. 47 applies only to defendants who are not registered sexual offenders and have no previous convictions for other severe violent violations, like murder. A defendant who does not qualify for Prop. 47 can face either felony or misdemeanor charges based on other factors, such as the kind of drug and amount in possession.

Drug possession for sale, selling of drugs, drug manufacturing, trafficking, distribution, and transportation of drugs are all considered felonies since the narcotics will likely inflict harm to several people. All these violations carry severe consequences.

The Amount Of The Substance

You can be accused of a felony drug offense based on the quantity of narcotics involved, for example, if the drug was in usable amounts. A drug is deemed to be in usable amounts if it is sufficient to affect the user physically or mentally. Even for legal narcotics such as marijuana, the law controls the amount you can legally possess or grow.

For example, persons above 21 years of age can legally possess, buy, or use not more than 28.5g of pot in a private home or licensed establishment for pot consumption. Possessing a slightly higher-than-stipulated amount of the regulated substance can lead to misdemeanor charges. But if the quantity you had or grew is substantially higher than the lawful quantity, you may face felony charges.

Whether or not you are accused of simple possession or possession with the intention to sell also depends on the amount of the substance involved. If you had more narcotics than any average individual would use, the D.A. would presume you had them for sale. Simple drug possession is considered a misdemeanor, while possession for sale is deemed a felony.

Other factors that can help prove possession for sale include the following:

  • Drug packaging: before the D.A. demonstrates that you have a drug for sale, they will look at how you have packaged the drugs. If you had packaged them in several separate balloons, baggies, bindles, bundles, or any other way prevalently linked to drug sales, law enforcement would say this kind of packaging suggests you had the drug for sale instead of personal use. Equally, if a law enforcement officer caught you with many baggies or other packaging material, they would suspect intention to sell.
  • Presence of drug paraphernalia: Since paraphernalia such as syringes or pipes indicate drug use, its presence may support your argument that the narcotics were for your own use. But if the officers found you with items like measuring instruments, weighing scales, tools that might be utilized to separate, package, or dilute drugs, or significant amounts of cash, particularly in small denominations, they would claim you intended to sell the drugs.
  • You were intoxicated: If you were intoxicated with drugs when you were arrested, this fact would indicate your own use instead of your intention to sell. But most drug dealers also use drugs, so this evidence would be inconclusive.

Apart from affecting whether you will be prosecuted for a misdemeanor or felony charge, drug quantities can also affect sentencing. For example, if significant amounts of drugs are involved in your case, you may be subject to:

  • Mandatory minimum sentence: The amount of narcotics you possess, intend to sell, or cultivate can lead the judge to order a mandatory minimum term after being convicted.
  • Enhanced sentence: Large amounts of drugs mean they are usable by plenty of people, affecting society significantly. Thus, you would be subject to additional consequences if your charge involved large quantities.

Aggravating Circumstances In Your Case

The existence of aggravating facts in any criminal case significantly affects how charges are filed and the resulting consequences. An aggravating circumstance is a factor that makes an offense more severe. If the police arrest you for a narcotics offense, the existence of the following aggravating factors can lead to the prosecution pursuing felony charges:

Your Criminal Record

Judges impose harsher consequences on repeat offenders. If you have a previous record of criminal activity, it shows your disregard for the law and inability to rehabilitate from prior mistakes. When arrested for a narcotics offense, the D.A. will review the facts surrounding your case before bringing charges. If you were previously found guilty of a drug-related crime, your current drug offense could be deemed a felony.

Also, you could face felony charges if you have previously been convicted of other felony crimes, even if they are unrelated to your underlying drug offense. Accusing a repeat offender of a felony ensures they face the maximum punishment for repeated criminal actions.

Tampering With Evidence or Resisting Arrest

Sometimes, the police will send an undercover cop or conduct a sting operation to probe a person's engagement in narcotics-related activities. Consequently, most arrests regarding drug offenses come unexpectedly to defendants. Your behavior while being arrested for a narcotics-related offense can affect the kind of charges you face and how severe the consequences will be.

Even though tampering with evidence or resisting arrest is unrelated to drug-related activity, it could cause an intricate legal situation, resulting in tension. In that case, the prosecution may increase your charges to a felony, meaning harsher criminal consequences and collateral repercussions.

Involvement In Criminal Street Gang Activities

Being involved in criminal gang activity is sufficient to change your drug offense to a serious felony per California statute. That is because the relationship between your narcotic-related acts and involvement in criminal gang activity raises concerns regarding the sophistication and extent of drug offenses.

Engaging in criminal gang activity can result in racketeering, gang enhancement, or conspiracy charges. Additionally, this could lead the district attorney to file felony charges for narcotics-related activity. At times, involvement in criminal gang activities is considered a federal offense, which could lead to your drug offense being prosecuted in a federal court.

Federal crimes are aggressively prosecuted, and the penalties are harsh after conviction. Federal courts impose mandatory minimum incarceration periods, meaning you must serve a particular part of your incarceration period.

Committing a Drug Crime Near a Prohibited Area

Even for narcotics such as pot, whose possession, use, or cultivation for recreational purposes is lawful, there are various restrictions regarding where you could possess, use, or cultivate them. Using marijuana is only lawful when done in private areas away from the public. Should you possess any narcotic near a drug treatment or rehab facility or a school, you risk being subject to felony charges.

Causing Death or Injury to the Victim

Causing death or severe injury to someone else while perpetrating a drug offense is a harsh, aggravating circumstance. This can lead to the D.A. filing a felony charge for a crime that may otherwise have led to misdemeanor charges. Causing death or injury shows your disregard for other people's life and safety. If this element is present in your drug violation case, you want an experienced drug crime lawyer to fight for you.

Possession of Guns

Under California HSC 11370.1, possessing a drug while having an operable and loaded gun is an offense. Having an operable gun may indicate that you intend to perpetrate an offense. Violating HSC 11370.1 is considered a felony punishable by a prison term not exceeding seven years. Apart from this penalty, your underlying drug offense will be prosecuted as a felony offense. This may lead to you spending a significant period incarcerated, in addition to other legal consequences.

Driving While Intoxicated

Under California law, it is against the law to drive while intoxicated with drugs. That is because if someone uses drugs, they may impair their mental and physical faculties, which may lead to accidents. Driving under the influence of drugs is a serious crime that, by itself, can have life-changing repercussions.

Even though driving while intoxicated with narcotics is a distinct crime, possessing a regulated substance at the time you are driving under the influence of drugs can lead to felony criminal charges.

Selling Drugs Around or To Minors

California law is strict about protecting children from the effects of narcotics use. Thus, selling or trafficking drugs around or to minors or involving a child in drug-related activities is illegal. If the prosecution has accused you of an offense, such as selling, manufacturing, or possessing a regulated substance involving a minor or their presence where these acts occur, it can file felony charges.

Find an Experienced Drug Crimes Defense Attorney Near Me

If you are arrested for a drug offense, you want to know what charges to expect if the prosecution decides to pursue the case. If several of the above factors are present in your case, you will likely face felony drug charges. You want to hire an experienced drug crime lawyer to help you review your case and determine what factors exist.

Also, felony drug charges carry severe sentences. Based on the factors in your case, a lawyer can help you negotiate with the prosecution to lower your case to a misdemeanor. If you have been arrested in Sacramento, CA, at the Foos Gavin Law Firm, we can help you review the facts of your case and offer legal advice and presentation. Call us at 916-779-3500 for a consultation.