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Drug Possession for Personal Use

If you are charged with possession of drugs, even for personal use, you need an aggressive Oakland drug attorney to fight your case. Why? Most drug offense stay on your record permanently, and some even have mandatory minimum jail sentences. But there are ways to avoid the serious consequences.

At the Law Office of Ernesto Castillo, we have more than a decade of experience defending drug crimes in Oakland, Alameda County, Contra Costa County, and the San Francisco Bay Area. We know the ins and outs of suppression motions, false evidence, and alternative sentences. With experience from murder trials to infractions, Oakland drug attorney Ernesto Castillo fights hard to dismiss your case, get the best possible plea deal, or convince the jury of innocence at trial.

What Are the Penalties for Personal Drug Use?

Possession of most narcotic drugs, like cocaine and heroin, is a felony under Health and Safety Code section 11350, subdivision (a). There is no possibility of a misdemeanor. If a person is convicted of a felony drug crime and has a serious probation violation that results in revocation of probation and sentencing, the sentence will at least 18 months in jail (the new realignment laws mean that most non-violent offenders serve their sentences in county jail at half-time instead of in prison). Felony possession of drugs for personal use has obvious, serious consequences.

The punishment for possession of other drugs, like methamphetamine and illegal mushrooms, can be a misdemeanor or felony under Health and Safety Code section 11377, subdivision (a). While not as serious since the offense is a "wobbler," possession of the drug methamphetamine can still potentially result in a long county jail sentence.

Marijuana possession for personal use, on the other hand, is a lighter penalty. Possession of less than an ounce (28.5 grams) of marijuana is punishable by a fine and an infraction under Health and Safety Code section 11357, subdivision (a). Possession of more than an ounce is punishable by a sentence of up to 6 months in county jail.

Being under the influence of most narcotic drugs in public is punishable by a mandatory minimum jail sentence of 90 days under Health and Safety Code section 11550. The only way to avoid jail is if the court approves, "in the interest of justice," a drug treatment rehabilitation program as an alternative to jail.

While it is true that many personal drug possession cases do not result in jail sentences of more than a year, avoiding jail at all, and avoiding a felony or misdemeanor on a permanent record, is very important to most people. That is why Oakland criminal defense attorney Ernesto Castillo uses all of the available tools to avoid a conviction or jail time.

What is Suppression Motion?

One of the most important tools is a suppression motion. If the motion to suppress is granted, the district attorney almost always dismisses the case. Under the Fourth Amendment of the U.S. Constitution, an officer needs to have "reasonable suspicion," based on facts the officer can describe, to frisk a suspect. The officer has to have probable cause to arrest or fully search a person, home, or car; to search a home, an officer also needs a valid warrant. Our Oakland drug attorney reviews all the reports, warrants, and investigation to evaluate the best possible way to have the evidence suppressed. If the officer's lied in the investigation, or used false evidence, our Oakland drug attorney requests their personnel file with a Pitchess motion to prove a record of bad investigations. Suppression motions are a crucial part of a criminal proceeding. You need a dedicated and experienced attorney with particular knowledge in drug cases to succeed. We have that knowledge.

What Are the Requirements for Deferred Entry of Judgment?

Another powerful tool is negotiating an alternative sentence. Deferred entry of judgment under Penal Code section 1000 applies to all of the basic personal possession drug laws, Health and Safety Code sections 11350,11357, 11364, 11365, 11377, and 11550. There are a few requirements, but the most important are that the person must not have been convicted of a drug offense in the past, the charged offense must not have been for violence, and the person must not have failed diversion in the last five years.

Exclusions do not apply to application for a peace officer position, but otherwise provide much better benefits than a typical drug conviction.

Proposition 36 Drug Treatment

Proposition 36 drug treatment, also known as "drug court," is a second option to avoid jail. For a person with two convictions for drug possession, it is available, but for a third conviction the court must give its approval. People with strike convictions within the last five years are also ineligible. There are other disqualifications under Penal Code section 1210.1, but they are rather complex and can be evaluated in person by our Oakland drug attorney. Once accepted into drug court, the court will require testing and a drug treatment program (either in-patient or out-patient), which the drug offender will have to complete with less than three probation violations. At the conclusion of successful treatment, usually about a year, sometimes longer:

The conviction on which the probation was based shall be set aside and the court shall dismiss the indictment, complaint, or information against the defendant. In addition, except as provided in paragraphs (2) and (3), both the arrest and the conviction shall be deemed never to have occurred. The defendant may additionally petition the court for a dismissal of charges at any time after completion of the prescribed course of drug treatment. The defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.

The arrest or conviction cannot be used in any way to deny the drug offender any employment, benefit, license, or certificate. However, a felony drug offense can be used to deny a felon the right to own a gun, and can be used by the government to evaluate a job application for a police officer position.

Suppression of the evidence, deferred entry of judgment, or drug court are all resolutions to a drug possession case for personal use that do not involve jail time. At the Castillo Law Office, our goal is to get you the best possible result, not just avoid jail time; we fight hard and use all the evidence available to our advantage, even hiring experts when necessary to prove innocence.

Our Oakland drug attorney Ernesto Castillo is experienced, aggressive, and ready to help. Call today for a free consultation.

Hear it From A Few
Of Our Clients

  • I would highly recommend Mr Castillo to anyone.

    “Mr Castillo represented me on a criminal case in which I was falsely accused in 2012. He took over the case from a previous lawyer who was less aggressive and not actively pursing my defense. Mr Castillo is a confident, aggressive and very persistent lawyer. He kept my family and I up to date on the case and also returned our calls on time. Mr Castillo persuaded me not to take any deal and wanted take the case to trial because he was confident that he would win. With the Lord's guidance and Ernie's aggressiveness my case was dismissed. I would highly recommend Mr Castillo to anyone.”


  • I would recommend Mr. Castillo without any reservation.

    “Ernie Castillo was highly recommended to us. I researched and interviewed a few attorneys before making a decision of who we were going to select. It's so tough selecting when you're skeptical with the horror stories of attorney's not feeling the passion for their work but the money. After long conversations my husband and I decided to go with Ernie to represent our son in a serious case with multiple charges. We were not disappointed at all. Mr. Castillo expertise exceeded our expectations. His was thorough, he kept us up to date on the case, answered all our questions, returned our calls in a timely manner, he's truly a genuine and sincere person. Most of all his knowledge in handling the case was remarkable. I can't express thanks enough to Ernie for the spectacular job he did defending my son who was facing years in jail. He took a stressful situation and relieved it with a positive outcome. I would recommend Mr. Castillo without any reservation.”


  • I can't thank Ernie enough for investing his time and sincere efforts to helping my family out. He truly is a master of his craft.

    “A few years back, Ernie Castillo represented a family member of mine who was charged with a vehicular offense. Although minor compared to the high profile cases Ernie is accustomed to, Ernie took the case with the utmost professionalism and was able to reduce the charge so that my family member's record was not affected. I can't thank Ernie enough for investing his time and sincere efforts to helping my family out. He truly is a master of his craft.”