Immigration consequences of a California drug conviction should always be considered when an immigrant residing in the Golden State is accused of possession of narcotics. As the most recent immigration crisis involving illegal entry of unattended children has created much debate in Washington DC and directly affected states such as CA, many persons who live in states such as Calif. that are either residing in the United States with a visa or are not legally in the country must understand that certain drugs convictions can lead to deportation out of the country. When arrested for a crime in California, whether it be in Los Angeles, San Bernardino, Riverside, Orange or other county in California, you should always seek representation from a qualified California criminal defense lawyer who is aware of the consequences that a criminal conviction can have on a person’s immigration status.
Possession of Marijuana or other Drugs for Sale
California Health and Safety Code section 11359 makes it unlawful to knowingly possess marijuana for the purpose of sales. A conviction under Health and Safety Code section 11359 can be serious since the charge is a felony carrying a maximum possible prison sentence in most instances of up to 3 years in state prison. In addition, the immigration consequences for a non-US citizen can be severe if convicted of possessing marijuana or other drugs for sale. Under the federal Immigration and Nationality Act (INA) a person can be deported and is subject to being removed from the United States if they have suffered a criminal conviction that is considered an aggravated felony as defined in INA §101(a)(43)(B).
INA section 101(a)(43)(B) provides that an immigration court can find a state criminal conviction an “aggravated felony” for purposes of determining whether a person should be removed from the United States if the “state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Under federal law, the Controlled Substances Act treats the possession of marijuana with the intent to distribute as a felony, except that distributing a small amount of marijuana for no “remuneration” is a misdemeanor which would not be an “aggravated felony” for purposes of deportation. Thus, a conviction under California Health and Safety Code section 11359 would most likely qualify as an aggravated felony leading to deportation of persons who are not citizens and are still lawfully residing in the United States.
As discussed below, a possession of marijuana and/or drugs charged can be defended by an experienced California criminal defense lawyer in such a way as to avoid the severe immigration consequences that go along with a felony drugs sales conviction.
Reduction Of Possession of Narcotics Charges to a Misdemeanor and/or Dismissal
A conviction for possession of marijuana for personal use in violation of California Health and Safety Code section 11357b is a misdemeanor. Although a misdemeanor conviction has consequences such as local jail time, such a conviction will rarely lead to serious immigration consequences such as removal from the United States. Often times, person arrested for possession of marijuana for sales can get the charges dismissed and/or reduced to a misdemeanor with the help of a qualified criminal defense attorney. Circumstances that prosecutors’ rely on in arguing that possession of marijuana is for the purposes of sale include the quantity of the marijuana seized, the amount of cash seized if any, the seizure of items related to sales such as scales and client lists and other facts showing as defendant’s intent was to possess to sell.
In many instances, persons arrested with drugs and/or guns can challenge such arrest on the grounds that the seizure and/or arrest was made without probable cause in violation of the Fourth Amendment to the United States Constitution.
More recently, many persons are also being arrested with large amounts of marijuana that is meant to be distributed as part of a medical marijuana collective. California legalized the possession of medical marijuana 1996 with the passing of the California Compassionate Use Act 1996, Cal. Health & Saf. Code, § 11362.5 (1996) (codifying Prop. 215). In 2003, the California State Legislature amended the medical marijuana laws as set forth in Cal. Health & Saf. Code, §§ 11362.7 – 11362.83 (2003).
Pursuant to the 2003 amendments, qualified medical marijuana patients and/or their primary caregivers may possess no more than eight ounces of dried marijuana and/or six mature (or 12 immature) marijuana plants. However, the 2003 law does allow patients to possess larger amounts of marijuana when recommended by a physician. In addition, municipalities and counties are allowed to approve local ordinances permitting patients to possess larger quantities of medicinal marijuana than allowed under California state law guidelines
Importance of hiring a criminal defense attorney when facing drug charges that could result in deportation:
If a criminal defense attorney can show that a person is in lawful possession of medical marijuana, criminal charges can often be dismissed and clearly no immigration consequences would occur since there would be no conviction suffered by a defendant.
When charged with possessing marijuana for sale, not only should a person be aware of the criminal consequences of such a conviction including prison but also the immigration consequences that follow a felony conviction for drugs sales. The first thing a person should do when arrested for possessing marijuana or other drugs for sale in California is to contact and/or retain an experienced California criminal defense attorney so that your rights may be protected.