Possession of a Controlled Substance while Armed with Firearm

Orange County Drug Crimes Defense Lawyer

It is a felony to be in possession of drugs while armed with a firearm. The punishment if convicted can be imprisonment in state prison for up to four years.

The firearm does not have to be illegally owned. A registered firearm can still trigger this enhanced drug charge as long as you are caught unlawfully possessing a controlled substance.

There are several requirements that the prosecutors must prove in order to convict you of this crime. “Armed with” in this crime means to have available for immediate offensive or defensive use. You must actually know that the firearm was present. A caveat to this is that two people can be in possession of the firearm at the same time.

Being charged with this crime also makes you ineligible for Diversion Programs like PC 1000 or Prop 36.

Elements

The defendant is charged with possessing (insert type of controlled substance specified in Health & Saf. Code, § 11370.1), a controlled substance, while armed with a firearm [in violation of <insert appropriate code section[s]>].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant [unlawfully] possessed a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance’s nature or character as a controlled substance;
  4. The controlled substance was <insert type of controlled substance specified in Health & Saf. Code, § 11370.1>;
  5. The controlled substance was in a usable amount;
  6. While possessing that controlled substance, the defendant had a loaded, operable firearm available for immediate offensive or defensive use; AND
  7. The defendant knew that (he/she) had the firearm available for immediate offensive or defensive use.

Knowledge that an available firearm is loaded and operable is not required.

A firearm is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion.

A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.

Two or more people may possess something at the same time.

A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.

Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.

If you’re charged with being in possession of a controlled substance while armed with a firearm, consult with an experienced Orange County Drug Crimes Defense Lawyer. At the Law Offices of Nam Q. Doan | OC Legal Defense, I will defend your rights in court and fight to get your charges dismissed. Call today at (714) 248-DOAN (3626).