California Drug Laws re Cocaine
Explained by Criminal Defense Lawyers

Cocaine...also commonly referred to as "coke", "snow", "blow", "crack" and "rock"... is what's known as a controlled substance.  A "controlled substance" is a drug / narcotic whose manufacture, possession and use are regulated by the government under the United States "Controlled Substances Act".

This act classifies cocaine as a Schedule II drug.1 When a drug is listed as "Schedule II", it means that

  1. it has a high potential for abuse,
  2. it has a currently accepted medical use...but with strict limitations...and
  3. abusing the controlled substance may lead to severe psychological and/or physical dependence.2

Cocaine base, however, is listed as a Schedule I drug,3 which means that...in addition to the drug having a high potential for abuse...there is no currently accepted medical use for the drug.4

In this article, our California drug crimes defense attorneys5 provide an overview of the types of laws that regulate cocaine use, possession and sales in California by addressing the following:

1. The History of Cocaine
2. Cocaine's Medical Uses
3. California Drug Laws Regulating Cocaine's Possession, Use and Sales

3.1. Health and Safety Code 11350 HS -- California's "personal possession of a controlled substance" law

3.2. Health and Safety Code 11351 HS -- California's "possession or purchase of a controlled substance for sale" law

3.3. Health and Safety Code 11352 HS -- California's "transporting or selling a controlled substance" law

3.4. Health and Safety Code 11550 HS -- California's "being under the influence of a controlled substance" law

3.5. Driving under the influence of drugs

4. Legal Defenses to Cocaine Charges

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. The History of Cocaine

Cocaine is a type of alkaloid.  An "alkaloid" is a type of plant-derived organic compound.  And though their effects vary, all alkaloids cause a physiological effect on the human body.6

Cocaine is derived from the leaves of a coca plant.  As a result, its name is a combination of "coca" and the alkaloid suffix "ine".

Cocaine is a central nervous system stimulant...which means it "speeds" up your body mentally and physically.  It serves as an appetite suppressant and may be used as a topical anesthetic (that is, a "numbing" agent) as well.  Depending on its form, this controlled substance can be snorted (that is, inhaled), injected or smoked.7

Although cocaine was wildly popular as a recreational drug of choice in the 1980s and 1990s, it has been around...and abused...for more than a century.  And yes, the rumors are true...very small doses were even found in the common soft-drink "Coca-cola" from approximately 1892 until 1929 when it was replaced with caffeine.8

Today, cocaine's use/abuse is declining.

2. Cocaine's Medical Use

As a Schedule II drug, cocaine's medical use is severely restricted.

Cocaine legitimately serves as a local anesthetic by surgeons to numb the lining of the mouth, nose and throat before certain medical procedures.  It not only works quickly but also causes blood vessels to narrow which decreases residual bleeding and swelling that are common side effects of these procedures.9

Yet despite its medical function, cocaine is rarely used by healthcare professionals in the United States.10

3. California Drug Laws Regulating Cocaine's Possession, Use and Sales

Because cocaine's legitimate / "legal" purposes are so limited within California, there are a variety of laws that regulate its use, possession and sales.  By simply possessing cocaine, you are likely committing a felony...and if you are using it and/or selling it, you subject yourself to any number of crimes.

Below is a brief description of some of the most common  
California drug crimes involving cocaine.

3.1. Health and Safety Code 11350 HS - California's "personal possession of cocaine" law

Health and Safety Code 11350 HS California's "personal possession of a controlled substance" law prohibits possessing a variety of illegal drugs.11 Some of the most common narcotics...in addition to cocaine...that violate this law include (but are not limited to):

If police find you in possession of cocaine, prosecutors could charge you with this felony, punishable by 16 months, or two or three years in the
California state prison and a maximum $20,000 fine. 13

Fortunately, a conviction for personally possessing cocaine may allow you to participate in a California drug diversion program.  Drug diversion...permissible under

allows eligible persons to participate in drug treatment in lieu of prison.  And those who successfully complete diversion will qualify to have their drug charge(s) dismissed.

3.2. Health and Safety Code 11351 HS -- California's "possession or purchase of cocaine for sale" law

Health and Safety Code 11351 HS -- California's "possession or purchase of cocaine for sale" law involves the same drugs listed above under HS 11350.  However, this offense is more serious in that it involves possessing (or purchasing) these drugs with the intent to sell them. 16

If prosecutors can prove that you possessed or purchased cocaine with the intent to sell it...rather than consume it for personal use...you face two, three or four years in the state prison and the same maximum $20,000 fine.

However, if you are convicted of possessing or purchasing cocaine base for sale, you face three, four or five years in prison and the same maximum $20,000 fine.17

In addition, if you are convicted of possessing or purchasing cocaine or cocaine base for sale...and the amount of the cocaine or cocaine base exceeds one kilogram, you face an additional three to twenty-five years in prison and substantial fines that could total $8,000,000.18

Unlike possessing cocaine for personal use, possessing or purchasing cocaine for sale does not allow you to participate in a drug diversion program.

3.3. Health and Safety Code 11352 HS -- California's "transporting or selling cocaine" law

Health and Safety Code 11352 HS California's "transportation or selling a controlled substance" law also applies to the same controlled substances listed above.  HS 11352 is the most serious of the three possession / sales offenses.

If you are convicted of selling or transporting cocaine or cocaine base...or engaging in any of the other activities prohibited under this law...you face three, four or five years in the state prison (and three, six or nine years if you transport the cocaine across more than two county lines).19

And the same additional prison terms and fines mentioned above for having an excess amount of cocaine or cocaine base apply to this offense as well.20

3.4. Health and Safety Code 11550 HS -- California's "being under the influence of cocaine" law

You violate Health and Safety Code 11550 HS California's "being under the influence of a controlled substance" law when you are under the influence of any of the narcotics mentioned above under HS 11350.21

You are "under the influence" of cocaine if your physical or mental abilities are impaired "in any detectable manner".22 And while this offense is a
misdemeanor subjecting you to possible jail time, eligible defendants may be able to participate in drug diversion instead.23

3.5. Driving under the influence of cocaine

Similarly, you violate Vehicle Code 23152 a VC California's driving under the influence of drugs law when you drive under the influence of cocaine.24 However, driving under the influence uses a different standard for being under the influence than HS 11550.

You drive under the influence of cocaine when the cocaine has "so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties."25

Most convictions for this offense are misdemeanors, subjecting you to fines and potential jail time.

4. Legal Defenses to Cocaine Charges

Regardless of which California cocaine offense prosecutors charge you with, there are a variety of legal defenses that a skilled California criminal defense lawyer could present on your behalf.  Which specific ones will apply will depend on the charge(s) you face.

But as Hemet criminal defense attorney John Murray26 explains, "There are a handful of defenses that are typically raised in connection with California drug offenses ...and these defenses routinely apply to California investigations involving cocaine."

Some of the most common include (but are not limited to):

  • illegal search / seizure (that the police violated California's search and seizure laws, perhaps by searching you without a California search warrant or by seizing cocaine that was discovered outside the scope of a valid warrant),
  • entrapment (that you only committed a cocaine-involved crime because the police coerced you into doing so),
  • police misconduct (the officers engaged in unethical misconduct when they discovered/seized the alleged cocaine), and
  • the fact that you didn't possess the cocaine (it belonged to someone else).
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If you or loved one is charged with possession of cocaine and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada possession of cocaine laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.27

¿Habla español? Visite nuestro sitio Web en español sobre delitos de cocaína en California.

Legal References

1California Health and Safety Code 11055 HS -- Schedule II; substances included. ("(a) The controlled substances listed in this section are included in Schedule II. (b) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis...(6) Cocaine, except as specified in Section 11054.")

2 21 U.S.C. Section 812 -- The United States Controlled Substances Act.  ("(a) Establishment. There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and V. Such schedules shall initially consist of the substances listed in this section. The schedules established by this section shall be updated and republished on a semiannual basis during the two-year period beginning one year after October 27, 1970, and shall be updated and republished on an annual basis thereafter. (b) Placement on schedules; findings required Except where control is required by United States obligations under an international treaty, convention, or protocol, in effect on October 27, 1970, and except in the case of an immediate precursor, a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for each of the schedules are as follows:(1) Schedule I. - (A) The drug or other substance has a high potential for abuse.(B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision. (2) Schedule II. - [where cocaine falls] (A) The drug or other substance has a high potential for abuse.(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.(3) Schedule III. - (A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II. (B) The drug or other substance has a currently accepted medical use in treatment in the United States.(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence. (4) Schedule IV. - (A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule III.(B) The drug or other substance has a currently accepted medical use in treatment in the United States. (C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.(5) Schedule V. - (A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV.(B) The drug or other substance has a currently accepted medical use in treatment in the United States.(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.(c) Initial schedules of controlled substances Schedules I, II, III, IV, and V shall, unless and until amended pursuant to section 811 of this title, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated...").

3California Health and Safety Code 11054 HS -- Schedule I; substances included.  ("(a) The controlled substances listed in this section are included in Schedule I...(f) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its isomers: (1) Cocaine base. (2) Fenethylline, including its salts. (3) N-Ethylamphetamine, including its salts.")

4 See "Schedule I" drug definition, endnote 2, above.

5 Our California drug crimes defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

6Wisegeek.  What is an alkaloid?

7National Institute on Drug Facts: InfoFacts -- Cocaine.

8Medical Uses of Illicit Drugs by Lester Grinspoon and James B. Bakalar.  ("One of the most popular drinks containing cocaine was CocaCola, first concocted in 1886 by a Georgia pharmacist. The Coca-Cola Company was founded in 1892, and throughout the 1890s CocaCola was advertised as a headache remedy and stimulant as well as an enjoyable drink. In 1903 coca extract was removed from Coca-Cola and replaced with caffeine. A de-cocainized extract of the coca leaf is still used for flavoring.")

See also Snopes.com regarding cocaine in Coca-cola.

9Medicine.Net -- Cocaine.

10U.S. Department of Justice, Drug Enforcement Administration.  Drugs and Chemicals of Concern: Cocaine.

11 California Health and Safety Code 11350 HS -- Possession of controlled substances.  ("(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055 [California drug laws involving cocaine fall here], or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison. (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in the county jail for not more than one year or in the state prison. (c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.")

12 See same.

13 See same.

See also California Health and Safety Code 11372 HS -- Fines.  ("(a) In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350, 11351, 11351.5, 11352, 11353, 11355, 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses. (b) Any person receiving an additional term pursuant to paragraph (1) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not exceeding one million dollars ($1,000,000) for each offense. (c) Any person receiving an additional term pursuant to paragraph (2) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed four million dollars ($4,000,000) for each offense. (d) Any person receiving an additional term pursuant to paragraph (3) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed eight million dollars ($8,000,000) for each offense. (e) The court shall make a finding, prior to the imposition of the fines authorized by subdivisions (b) to (e), inclusive, that there is a reasonable expectation that the fine, or a substantial portion thereof, could be collected within a reasonable period of time, taking into consideration the defendant's income, earning capacity, and financial resources.")

14 California Penal Code 1210.1 PC (also known as Proposition 36) -- Possession of Controlled Substances; Probation; Exceptions.  ("(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense [such as a California personal possession charge involving cocaine] shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose. Probation shall be imposed by suspending the imposition of sentence. No person shall be denied the opportunity to benefit from the provisions of the Substance Abuse and Crime Prevention Act of 2000 based solely upon evidence of a co-occurring psychiatric or developmental disorder. To the greatest extent possible, any person who is convicted of, and placed on probation pursuant to this section for a nonviolent drug possession offense shall be monitored by the court through the use of a dedicated court calendar and the incorporation of a collaborative court model of oversight that includes close collaboration with treatment providers and probation, drug testing commensurate with treatment needs, and supervision of progress through review hearings. In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program.

15 California Penal Code 1000 PC -- Application of chapter to certain violations.

16 California Health and Safety Code 11351 HS -- Possession or purchase for sale of designated controlled substances; punishment.  ("Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055 [where California's drug laws involving cocaine are located], or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison for two, three, or four years.")

17 California Health and Safety Code 11351.5 HS -- Possession of cocaine base for sale; punishment.  ("Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment in the state prison for a period of three, four, or five years.")

See also California Health and Safety Code 11372 HS -- Fines, endnote 13, above.

18 California Health and Safety Code 11370.4 HS -- Convictions under specified sections with respect to substances containing heroin, cocaine base, cocaine, methamphetamine, amphetamine or phencyclidine; additional terms.  ("(a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 with respect to a substance containing heroin, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or cocaine as specified in paragraph (6) of subdivision (b) of Section 11055 shall receive an additional term as follows: (1) Where the substance exceeds one kilogram by weight, the person shall receive an additional term of three years. (2) Where the substance exceeds four kilograms by weight, the person shall receive an additional term of five years. (3) Where the substance exceeds 10 kilograms by weight, the person shall receive an additional term of 10 years. (4) Where the substance exceeds 20 kilograms by weight, the person shall receive an additional term of 15 years. (5) Where the substance exceeds 40 kilograms by weight, the person shall receive an additional term of 20 years. (6) Where the substance exceeds 80 kilograms by weight, the person shall receive an additional term of 25 years. The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (b) Any person convicted of a violation of, or of conspiracy to violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs shall receive an additional term as follows: (1) Where the substance exceeds one kilogram by weight, or 30 liters by liquid volume, the person shall receive an additional term of three years. (2) Where the substance exceeds four kilograms by weight, or 100 liters by liquid volume, the person shall receive an additional term of five years. (3) Where the substance exceeds 10 kilograms by weight, or 200 liters by liquid volume, the person shall receive an additional term of 10 years. (4) Where the substance exceeds 20 kilograms by weight, or 400 liters by liquid volume, the person shall receive an additional term of 15 years. In computing the quantities involved in this subdivision, plant or vegetable material seized shall not be included. The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (c) The additional terms provided in this section shall not be imposed unless the allegation that the weight of the substance containing heroin, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, methamphetamine, amphetamine, or phencyclidine (PCP) and its analogs exceeds the amounts provided in this section is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (d) The additional terms provided in this section shall be in addition to any other punishment provided by law. (e) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.")

See also California Health and Safety Code 11372 HS - Fines, endnote 13, above.

19 Health and Safety Code 11352 HS -- Transportation, sale, giving away, etc., of designated controlled substances; punishment.  ("(a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.")

20 See endnote 18, above.

21 California Health and Safety Code 11550 HS -- Under the influence.  (" (a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055 [such as the California drug laws involving cocaine], or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail. The court may place a person convicted under this subdivision on probation for a period not to exceed five years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days. Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail. (b) Any person who (1) is convicted of violating subdivision (a) when the offense occurred within seven years of that person being convicted of two or more separate violations of that subdivision, and (2) refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subdivision (c), shall be punished by imprisonment in a county jail for not less than 180 days nor more than one year. In no event does the court have the power to absolve a person convicted of a violation of subdivision (a) that is punishable under this subdivision from the obligation of spending at least 180 days in confinement in a county jail unless there are no licensed drug rehabilitation programs reasonably available. For the purpose of this section, a drug rehabilitation program shall not be considered reasonably available unless the person is required to pay no more than the court determines that he or she is reasonably able to pay, in order to participate in the program. (c) The court may, when it would be in the interest of justice, permit any person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program. In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds. (d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (e) Notwithstanding subdivisions (a) and (b) or any other provision of law, any person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison. As used in this subdivision "immediate personal possession" includes, but is not limited to, the interior passenger compartment of a motor vehicle. (f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years. (g) Nothing in this section prevents deferred entry of judgment or a defendant's participation in a preguilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a preguilty plea drug court program.")

22 People v. Enriquez (1996) 42 Cal.App.4th 661, 665.  ("The term "under the influence" differs for the purposes of section 23152, subdivision (a) and Health and Safety Code, section 11550. "To be 'under the influence' within the meaning of the Vehicle Code, the ... drug(s) [in this case, cocaine] must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.] In contrast, 'being under the influence' within the meaning of Health and Safety Code section 11550 merely requires that the person be under the influence in any detectable manner. The symptoms of being under the influence within the meaning of that statute are not confined to those commensurate with misbehavior, nor to those which demonstrate impairment of physical or mental ability.")

23 See endnote 21, above.

24 California Vehicle Code 23152(a) VC -- Driving under the influence.  ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.")

25 See People v. Enriquez, endnote 22, above.

26 Hemet criminal defense attorney John Murray defends clients throughout the Inland Empire including Hemet, Palm Springs, Rancho Cucamonga, Riverside and San Bernardino.

27 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's drug crimes. Our Nevada law offices are located in Reno and Las Vegas.

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