It is against the law in California to possess both a loaded, operable firearm, and certain drugs. If convicted of this felony crime, you can face up to 4 years imprisonment and a fine up to $10,000. Other serious repercussions may result, such as a lifetime ban on owning firearms, and a requirement that the conviction be disclosed on job applications. As an experienced drug offense defense lawyer, Attorney Gregory H. Comings fights for the rights of the accused. Throughout Riverside and nearby communities, Attorney Comings defends clients against crimes of cultivation, possession, as well as drug trafficking and other offenses. By providing dedicated and aggressive advocacy, he ensures that clients receive top-notch legal representation. This includes consistently informing clients of the status of their case, as well as remaining honest and reliable.

As stated under California California Health and Safety Code 11370.1 HS, in order to be convicted of possession of drugs while armed, the prosecution must set forth evidence of all elements of the crime. First, they must show you were in possession of a usable amount of a controlled substance. You must have known of the presence of the substance. Additionally, while possessing the substance, you must also have been in possession of a loaded, operable firearm. Finally, you must have knowledge that you had the firearm available for immediate use.

It is against the law to unlawfully possess substances listed under California Health and Safety Code 11370.1 in any amount. These include cocaine, heroine, “PCP” and methamphetamine, among others. Definitions of “controlled substance” generally are broader than used under this law.

To “possess” a controlled substance requires that you have actual, constructive, or joint possession. Actual possession means that you are physically holding the substance, or it is on your body or within something you are wearing or holding. Constructive possession, on the other hand, means you have the right to control the substance but may not have immediate access to it. For example, if the drugs are in the glove compartment of your vehicle, this may be deemed “constructive possession.” Two or more people can possess drugs at the same time, as in joint possession.

Regarding the definition of being “armed” under the statute, the law requires that a person knowingly have a firearm available for immediate use (either offensive or defensive). It is not necessary that you hold the firearm to be “armed.” A loaded firearm is defined as one that has a cartridge or a shell in a position from which it can be fired.

It is important to understand that under California Health and Safety Code 11370.1, there is no requirement that a defendant actually use the firearm, threaten anyone, or brandish the weapon to be convicted. Simply possessing a loaded and operable firearm at the same time as a controlled substance is enough to support a prosecution under this law. However, if there is reasonable doubt as to any of the elements of the law, then a conviction cannot stand.

An experienced defense attorney will be capable of assessing whether the prosecution has met their burden of proving every element of the crime. For example, regarding “knowledge,” if the drugs did not belong to you, or you did not know the drugs were there, a defense lawyer may be able to set forth this defense. In some situations, the prosecutor may try to use evidence, either circumstantial or direct, to show that you knew of the controlled substance. They may rely on past evidence of your drug use, or drug-related crimes. Your possession of drug paraphernalia may also be set forth as evidence of knowledge.

The prosecution must prove knowledge of a loaded, operable weapon. If the weapon was not loaded, or you were unaware of the presence of the weapon, you may have a strong defense. The prosecution does not, however, need to show that you knew the gun was loaded. Courts have held that knowledge that the firearm is loaded and operable is not an element of the law. A skilled defense lawyer will be familiar with the nuances of this element of the crime.