California Drug Laws Involving "Codeine"

Codeine is the most prescribed drug in the world. But possessing it without a valid prescription-or beyond the scope of the prescription-is a felony in California.1 And selling it on the black market is an even more serious crime, one which could land a person in state prison for years.

In this article, our California criminal defense attorneys provide an overview on the laws that relate to codeine's possession, use and sales by addressing the following:

1. A History of Codeine
2. Codeine's Medical Uses

2.1. Abuse

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

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

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

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

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

3.5. Driving under the influence of codeine

4. Legal Defenses to California Codeine-Related Charges

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

1. A History of Codeine

Codeine 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".

Codeine is unusual in that the Controlled Substances Act lists it under three different Schedules.Schedules II, III and V.depending on the amount of the dose.  By itself, codeine is a Schedule II drug, but when mixed with other medications in a lower dose, it is listed as Schedule III or V.2

  • Schedule II drugs-
"Schedule II" drugs
  1. have a high potential for abuse,
  2. have a currently accepted medical use.but with strict limitations.and
  3. can lead to severe psychological and/or physical dependence if abused.3
  • Schedule III drugs-
"Schedule III" drugs
  1. have a potential for abuse that is less than the drugs listed in Schedules I and II,
  2. have a currently accepted medical use, and
  3. can lead to moderate or low physical dependence or high psychological dependence if abused.4
  • Schedule V drugs-
"Schedule V" drugs
  1. have a low potential for abuse relative to the controlled substances listed in Schedules I - IV,
  2. have a currently accepted medical use, and
  3. will only lead to limited dependence if abused.5

Regardless of which Schedule the codeine falls under, its use, possession and/or sales is illegal without a valid prescription.that is, unless the codeine is sold in an over-the-counter formula, which is rarely the case.

2. Codeine's Medical Uses

Codeine is a type of opiate.that is, a narcotic derived from the opium poppy plant that dulls the senses and has a sedative effect.  Codeine was the first opiate derivative that was made into an over-the-counter ("OTC") drug.  Medications containing small doses of codeine may be available without a prescription, yet very few places in California or the United States will sell these products without a prescription.

And.despite the fact that codeine is frequently abused.it is still the most commonly prescribed drug in the world.6

Codeine is used and recognized as a pain blocker.  It relieves pain even when the original source of the pain remains.

Most legally prescribed codeine is mixed with other medications such as cough syrup or acetaminophen (typically Tylenol).  Codeine has also been added to many cancer and HIV medications, thereby contributing to its popularity as one of the world's most prescribed medications.7

Codeine that is prescribed alone or in a dosage more than 90 mg per dose, is considered a Schedule II controlled substance.  When the codeine is combined with other drugs in a lower dosage, it may be classified as a Schedule III or V controlled substance, depending on the amount of the dose.8

2.1. Abuse

It is fair to say most people who abuse codeine began using the drug for legitimate medical purposes.

Some people find codeine's pain-killing ability so strong that they continue to use more and more, which ultimately turns into an addiction.  Others discover that they enjoy the pain-numbing characteristics that tend to induce feelings of euphoria and well-being and simply take the drug to prolong those feelings.

However, there are also serious side effects to abusing this particular narcotic.  Some of these include

  • kidney and/or liver damage,
  • bleeding in the stomach,
  • nausea,
  • lowered blood pressure and heart rate,
  • hallucinations, and
  • depression.9

Once a person is addicted to codeine, s/he may obtain the drug through the criminal practice of doctor shopping/prescription fraud--or by working with a doctor who is willing to knowingly commit the crime of prescribing controlled substances to an addict.

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

Even though codeine is a legally prescribed drug, it is frequently abused as well.  And.because it is frequently abused.it is often illegally used, possessed and sold.  As a result, California has enacted a number of laws that regulate its possession, use and sales.  We briefly describe some of the most common below.

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

Health and Safety Code 11350 HS California's "possession of a controlled substance" law prohibits possessing codeine without a valid prescription.10 This law.and the other California codeine-related offenses described below.also prohibit possessing other controlled substances as well.  Some of the most common narcotics include:

Having a valid prescription for codeine is a valid defense to this charge as long as you only possess the codeine in strict compliance with that prescription.  This means that

  1. possessing someone else's codeine,
  2. possessing codeine under prescriptions that you obtained from multiple doctors, without them knowing about each other (a type of prescription fraud known in California as "doctor shopping"), or
  3. possessing more than the prescribed amount of the drug,

will still subject you to charges for violating California's "personal possession of codeine" law.  If convicted of this felony, you face 16 months, or two or three years in the California state prison and a maximum $20,000 fine.12

The good news is that a conviction for this California codeine-related offense entitles eligible defendants to participate in drug diversion.  "Drug diversion".authorized under

allows an individual to participate in drug treatment in lieu of serving time in 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 codeine for sale" law

You violate Health and Safety Code 11351 HS California's "possession or purchase of a controlled substance for sale" law when you possess or purchase codeine with the intent to resell the narcotic.  As a result, it is considered a more serious offense than HS 11350 above.13

If prosecutors can prove that you possessed or purchased codeine 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.14

And unlike possessing codeine for personal use, possessing or purchasing codeine for sale does not allow you to participate in a drug diversion program.  However, as San Bernardino criminal defense lawyer John Murray15 explains, "If your California drug crimes defense lawyer can convince the prosecutor/judge/jury that you only possessed codeine for your personal use.and that you had no intention of reselling it.your HS 11351 charge could be reduced to an 11350 charge for personal possession.  And, if you are ultimately convicted of Health and Safety Code 11350, you may be entitled to participate in diversion in lieu of prison."

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

The most serious of these California codeine-related offenses falls under Health and Safety Code 11352 HS California's "transportation or selling a controlled substance" law.  If you are convicted of selling or transporting (that is, moving) codeine.or engaging in any of the other acts prohibited under this law.you face a felony, punishable by three, four or five years in the state prison and a maximum $20,000 fine.16 And, if you are convicted of transporting the codeine across more than two county lines, you face three, six or nine years in prison and the same maximum fine.17

A conviction for this offense does not entitle you to participate in drug diversion.

Also important to note is the fact that a conviction for any of these California codeine-related offenses may lead to your removal or deportation if you are a legal immigrant or alien.18 For more information about how California drug crimes affect aliens, please review our article on California Crimes that Lead to Deportation.

3.4. Health and Safety Code 11550 HS -- California's "being under the influence of codeine" 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 codeine if its use is not consistent with a valid prescription.19

This is the case whether you are under the influence of straight codeine or whether the codeine is mixed with another medication such as Tylenol or cough syrup.

You are "under the influence" of codeine if your physical or mental abilities are impaired "in any detectable manner".20 And while this offense is a misdemeanor subjecting you to possible jail time, eligible defendants may be able to participate in drug diversion instead.21

3.5. Driving under the influence of codeine

And finally, you violate Vehicle Code 23152a VC California's driving under the influence of drugs law when you drive under the influence of codeine.22 This is regardless of whether you consume the codeine pursuant to a valid prescription.  If you drive while under the influence of codeine, you violate this law - period.

However, driving under the influence uses a different standard for being under the influence than does HS 11550.

You drive under the influence of codeine when the codeine 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."23

And most, if not all, codeine prescriptions come with some type of warning that states that the narcotic may impair your thinking and/or reactions and that you shouldn't drive until you know how the drug affects you.

Most convictions for this offense are misdemeanors, subjecting you to fines and potential jail time.  Drug diversion is not available in connection with this California codeine-related offense.

4. Legal Defenses to California Codeine-Related Charges

The most obvious legal defense to a California codeine-related offense for possessing or using this drug is that you only did so pursuant to and in compliance with a valid prescription.  If, however, you can't establish those facts, do not despair.  There are still a variety of defenses to California codeine-related offenses.

Some of the most common include:

  • mistaken identity (that the codeine actually belonged to someone else, but the police incorrectly assumed it was yours),
  • illegal search / seizure (perhaps the police violated California's search and seizure laws by searching you without a valid California search warrant or by discovering or seizing codeine that was located beyond the scope of a valid warrant), and
  • police misconduct (the officers engaged in unethical and illegal conduct when they discovered/seized the alleged codeine).
Call us for help.
Img-call-help

If you or loved one is charged with possession of codeine 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's possession of a controlled substance 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.24

Legal References:

1Our 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.

2United States Drug Enforcement Administration (DEA) - Drug scheduling.

321 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 [this is where some California codeine-related offenses fall]. - (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 [other California codeine-related offenses fall here]. - (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 [still other California codeine-related offenses fall here]. - (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.").

4See same.

5See same.

6The Role of Chemistry in History - How Codeine Affects History.

7See same.

8California 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: (1) Opium, opiate, and any salt, compound, derivative, or preparation of opium or opiate, with the exception of naloxone hydrochloride (N-allyl-14-hydroxy-nordihydromorphinone hydrochloride), but including the following: (A) Raw opium. (B) Opium extracts. (C) Opium fluid extracts. (D) Powdered opium. (E) Granulated opium. (F) Tincture of opium. (G) Codeine.")

See also California Health and Safety Code 11056 HS -- Schedule III; substances included.  ("(a) The controlled substances listed in this section are included in Schedule III.(e) Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below: (1) Not more than 1.8 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium. (2) Not more than 1.8 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.")

See also California Health and Safety Code 11058 HS -- Schedule V; substances included.  ("(a) The controlled substances listed in this section are included in Schedule V.(c) Narcotic drugs containing nonnarcotic active medicinal ingredients. Any compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below, which shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by narcotic drugs alone: (1) Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams.")

9Recoverylife.com - Codeine addiction.

10California 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 [some California codeine-related offenses 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 [where the other California codeine-related offenses fall], 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.")

11See same.

12See same.

See also California Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail.  ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

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 [California codeine-related offenses fall under Health and Safety Code sections 11350, 11351 and 11352], 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.")

13California 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 some of California's drug laws involving codeine 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 [where other California codeine-related offenses fall], shall be punished by imprisonment in the state prison for two, three, or four years.")

14See same.

See also California Health and Safety Code 11372 HS - Fines, endnote 12, above.

15San Bernardino criminal defense attorney John Murray represents clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.

16Health 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 [where many California codeine-related offenses fall], 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 [where other California codeine-related offenses fall], 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.")

See also California Health and Safety Code 11372 HS - Fines, endnote 12, above.

17See same.

188 U.S. Code Section 1227 -- Deportable aliens. ("(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens.(2) Criminal offenses.(B) Controlled substances. (i) Conviction. Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.  And because codeine is a controlled substance, it is a California crime that could lead to deportation.

19California 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 codeine], 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 [where other California codeine-related offenses fall], 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.")

20People 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, codeine] 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.")

21See endnote 21, above.

22California 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.")

23See People v. Enriquez, endnote 22, above.

24Please 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.

Save

Free attorney consultations...

Our attorneys want to hear your side of the story. Contact us 24/7 to schedule a FREE consultation with a criminal defense lawyer. We may be able to get your charges reduced or even dismissed altogether. And if necessary, we will champion your case all the way to trial.

Regain peace of mind...

Our defense attorneys understand that being accused of a crime is one of the most difficult times of your life. Rely on us to zealously and discreetly protect your rights and to fight for the most favorable resolution possible.

Office Locations

Shouse Law Group has multiple locations all across California and Nevada. Click Office Locations to find out which office is right for you.

To contact us, please select your state:

Call us 24/7 (855) 396-0370