Drug Possession While Armed with a Firearm – 11370.1 Health and Safety Code
Considered the “next level” in drug offenses, being armed while possessing a controlled substance is a very serious offense. Most District Attorney offices will say one of their prosecution mantras is “guns and drugs equal prison.” That’s simply to reflect the public sentiment of the charge but also the hard-lined stance conveyed by many agencies.
Under California’s drug laws, the offense for being armed when arrested for possessing drugs carries a maximum exposure of four years in state prison and up to one year in county jail if probation is granted.
There are many factors that figure into proving guilt of being armed while arrested for drugs. An essential element of the offense is that the firearm must be “loaded”, operable, and available for immediate offensive or defensive use. People v. Clark (1996) 45 Cal.App.4th 1147, 1153.
To be “loaded”, there must be a shell or bullet ready to be fired in the gun casing. Therefore, such a firearm is ready for immediate use. That use need not be offensive. The gun can be purely used for defensive reasons but the result is the same. Knowledge that the gun is loaded, however, is not needed by the one who possess it. People v. Heath (2005) 134 Cal.App.4th 490, 498.
If you are facing charges for being armed while possessing drugs you’re going to want to hire an experienced and skilled drug crimes lawyer. As you can see, the law with regard to whether the gun is loaded, whether it was operable, whether the person charged had knowledge of it being present, and whether the person arrested knew it was loaded can complicate the case. Due to these complexities, some prosecutors and courts will not be readily assessing these small details that can make such big differences in a case.