LawLytics QA

California heroin laws make it a crime to do any of the following:

Our California heroin attorneys are familiar with the penalties and top legal defenses for all of the major heroin charges listed above. The following table shows the penalties for these heroin crimes:

California Heroin Crime

Code Section

Type of Offense

Penalties

Eligible for Drug Diversion?

Possession of heroin for personal use

HS 11350

Misdemeanor (for most defendants)

Up to 1 year in county jail; up to $20,000 fine

Yes

Possession of heroin for sale

HS 11351

Felony

2, 3 or 4 years in prison; up to $20,000 fine

No

Sale/transportation for sale of heroin

HS 11352

Felony

3 to 9 years in prison; up to $20,000 fine

No

Under the influence of heroin

HS 11550

Misdemeanor

Up to 1 year in county jail; up to $1,000 fine

Yes

Driving under the influence of heroin

VC 23152(e)

Misdemeanor (in most cases)

Driver's license suspension; up to $390 fine; 3 to 5 years DUI probation

No

Being present while heroin is used

HS 11365

Misdemeanor

Up to 6 months in county jail; up to $1,000 fine

Yes

California Heroin Crime

Penalties

HS 11350 possession of heroin for personal use without a prescription

Misdemeanor penalties: up to 1 year in county jail; up to $20,000 fine

HS 11351 possession of heroin for sale

Felony penalties: 2, 3 or 4 years in prison; up to $20,000 fine

HS 11352 sale/transportation for sale of heroin

Felony penalties: 3 to 9 years in prison; up to $20,000 fine

HS 11550 under the influence of heroin

Misdemeanor penalties: up to 1 year in county jail; up to $1,000 fine

VC 23152(e) driving under the influence of heroin

Misdemeanor penalties: driver's license suspension; up to $390 in fines; 3-5 years of DUI probation

HS 11365 being present while heroin is used

Misdemeanor penalties: up to 6 months in county jail; up to $1,000 fine

Below, our California drug crimes defense attorneys answer the following frequently asked questions about California's heroin laws:

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

1. What are the Penalties for California Heroin Crimes?

Because heroin has no legitimate medical purposes within California, its possession, use and sales are prohibited under a number of different heroin laws.  

Penalties for the most common California drug crimes that regulate heroin are:

1.1. What are the penalties for HS 11350 simple possession of heroin?

Simply possessing heroin for your personal use is a violation of Health & Safety Code 11350 HS, California's possession of a controlled substance law.1

Heroin_powder
Simple possession of heroin is a California misdemeanor for most defendants.

HS 11350 also prohibits possessing a number of other controlled substances in addition to heroin, including

Simple possession of heroin under HS 11350 is a California misdemeanor in most cases. The penalties may include up to one (1) year in county jail, and/or a fine of up to twenty thousand dollars ($20,000).3

However, you will face California felony penalties--including two (2) to four (4) years in jail--for personal heroin possession IF you have a prior conviction on your record for either:

  1. any of a small list of especially serious felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or
  2. a sex crime that subjects you to California's sex offender registration requirement.4

 The good news is that a conviction for personally possessing heroin may entitle you to participate in a California drug diversion program. "Drug diversion"—including through programs like California's Proposition 36--allows an eligible defendant to participate in drug treatment / rehabilitation in lieu of serving a prison term.5  

And if you successfully complete drug diversion, your heroin charges will be dismissed at the end of the program.

1.2. What are the penalties for HS 11351 possession for sale of heroin?

Health and Safety Code 11351 HS, possession of a controlled substance for sale, is a more serious crime than HS 11350 simple heroin possession.

You commit HS 11351 possession for sale when you possess or purchase heroin with the intent to sell it to someone else.

If you are convicted of possessing or purchasing heroin for sale, you face felony penalties, including two, three or four years in the state prison and the same maximum $20,000 fine.6

And you can face an additional three to twenty-five years in prison, plus fines that could total $8,000,000, if the weight of the heroin that you possess or purchase for sale exceeds one kilogram.7

You are not eligible for drug diversion if you are convicted of HS 11351 possession of heroin for sale.

However, in some cases either of the following occurs:

  1. The judge/jury determines that the defendant possessed or purchased heroin--but for personal use and not for sale., or
  2. A California heroin and drug crimes defense attorney negotiates a plea bargain for an HS 11350 personal possession charge--a less serious charge than a "possession of heroin for sales" charge.
Black-tar-heroin
Possession of heroin for sale under HS 11351 is a felony.

And under either of these scenarios, a drug diversion program like Prop 36 or Penal Code 1000 drug diversion may be available to you.

1.3. What are the penalties for HS 11352 sale / transportation of heroin?

Selling heroin, or transporting heroin with intent to sell it, will lead to charges under Health & Safety Code 11352 HS—the most serious of the California heroin-related crimes.

Sale or transportation of heroin is a felony, subjecting you to face three, four or five years in jail--or three, six or nine years if you transport the heroin across more than two county lines with intent to sell it.8

Heroin sales/transportation also carries a maximum $20,000 fine.

In addition, if you are convicted of either HS 11352 sale/transportation of heroin or of HS 11351 possessing or purchasing heroin for sale, AND

  1. the amount of the heroin exceeds 14.25 grams, or
  2. you have a prior conviction for HS 11351 or 11352 (for any controlled substance), then

you face a higher fine of $50,000.9

And just as with possession for sale of heroin, if you sell or transport for sale heroin weighing more than one kilogram, you will face an additional three to twenty-five years in prison, plus fines that could total $8,000,000.10

1.4. What are the penalties for HS 11550 being under the influence of heroin?

Prosecutors may charge you with Health & Safety Code 11550, “under the influence” of heroin, if they believe that you were under the influence of heroin at the time of your arrest.11

Person-shooting-heroin
Merely being under the influence of heroin can lead to California criminal charges.

You are considered to be "under the influence" under this California heroin law if your physical and/or mental abilities are impaired in "any detectable manner.”12

Being under the influence of heroin is a misdemeanor. It carries a maximum one year in county jail, and/or a fine of up to $1,000.13  

Fortunately, “under the influence” is a heroin crime that allows defendants to participate in drug diversion instead of serving a jail sentence.14

1.5. What are the penalties for VC 23152(e) driving under the influence of heroin?

Vehicle Code 23152(e) VC, California's driving under the influence of drugs law, makes it a crime to drive a vehicle while under the influence of heroin.15

Most convictions for DUI of heroin are misdemeanors. A first-time DUI of heroin might carry some or all of the following penalties:

  • Suspension of your driver's license;
  • Up to $390 in base fines (the total amount may be higher);
  • Required DUI school;
  • 3-5 years of DUI probation; and/or
  • In some California counties, a short county jail sentence.16

Drug diversion is not available if you are convicted of VC 23152(e) driving under the influence of heroin.

It's important to note that the definition of “under the influence” for purposes of California's driving under the influence of law is different than the definition for purposes of California's being under the influence law.

You are only considered to drive under the influence of heroin when the heroin 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.”17

California-drivers-license-marked-suspended
A conviction for DUI of heroin will lead to your driver's license being suspended.

1.6. What are the penalties for HS 11365 being present while someone else uses heroin?

It is a crime in California to knowingly be present for unlawful substance abuse by someone else, provided that you do something to aid or abet that person's drug use.

This crime, addressed by Health & Safety Code 11365 HS, does not apply to all illegal substances in California--but it does apply to heroin. Thus, if you are present while someone else uses heroin and assist or encourage that use, you may be charged with this offense.18

HS 11365 being present for heroin use is a California misdemeanor carrying a maximum jail sentence of six (6) months and a maximum fine of $1,000.19 You are eligible for "deferred entry of judgment" drug diversion if you are convicted of this crime.

1.7. What will happen to my immigration status if I am convicted of a California heroin crime?

A conviction for a California heroin crime can have devastating immigration consequences for defendants who are not U.S. citizens. This is true even for relatively minor crimes like HS 11350 personal possession of heroin.

Any controlled substance offense, including the major heroin offenses, is a deportable crime under U.S. immigration law.20

So if you are a legal immigrant or otherwise a non-citizen, it is important to let your California heroin crimes attorney know this. S/he can then craft the most appropriate legal defense strategy for this situation. For example, if you are at risk of deportation, your attorney probably should not try to pursue a plea bargain to from a more serious heroin crime to personal possession.

2. What Legal Defenses Can I Use to Fight California Heroin Charges?

Even though the exact legal defenses that will apply to your California heroin case will vary depending on the exact nature of your charge(s), heroin charges typically trigger a handful of common challenges.

Handcuffed-hands-beside-gavel
Police misconduct is a common legal defense in California heroin cases.

Some of the most common defenses for fighting a heroin charge include:

  • the police violated California's search and seizure laws by engaging in an illegal search and seizure,
  • the legal defense of entrapment (which applies when you only commit a heroin-related crime because the police coerced you into doing so),
  • you didn't intend to sell the heroin (and so are only guilty of the less serious offense of personal heroin possession),
  • you didn't possess the heroin (because it actually belonged to someone else), and
  • police misconduct (which could include allegations that the police
    • "planted" or "fabricated" evidence,
    • forced a confession from you regarding the heroin, or
    • used excessive force to seize the heroin).

As City of Orange drug crimes defense attorney John Murray21 explains,

"Many California investigations involving heroin and other drugs routinely involve undercover 'sting' operations. These operations provide a lot of opportunity for unethical and/or illegal police behavior. As a result, police misconduct is often part of our heroin attorneys' legal defense strategy for our clients.”

3. Is Heroin Possession Ever Legal in California?

Heroin--which also goes by common names such as "H", horse, black tar, smack, an "A-bomb" (when combined with marijuana) and a "speedball" (when mixed with cocaine)--is never legal in California.

The United States Controlled Substances Act and California drug law both classify heroin as a Schedule I drug. When a drug is listed as "Schedule I", it means that the narcotic

  1. has a high potential for abuse, and
  2. has no currently accepted medical use in the United States.22

It is true that heroin was commercially marketed as a non-addictive morphine substitute and cough suppressant by Bayer Pharmaceuticals in the late 19th century. But its addictive and dangerous quantities soon became clear. By 1924, the U.S. government had banned the drug entirely.23

This distinguishes heroin from other controlled substances like hydrocodone and codeine which are sometimes prescribed for medical purposes and thus are sometimes legal.

Call us for help . . .

Drug-crimes-defense-firm-call-center

If you or a loved one is facing California heroin charges and you are looking to hire a California heroin attorney for representation, we invite you to contact us at Shouse Law Group.

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 laws re possession or sale of heroin.  

¿Habla español? Visite nuestro sitio Web en español sobre los leyes de drogas de California sobre la "heroína".


Legal References:

  1. Health and Safety Code 11350 HS -- Possession of designated controlled substances [including heroin]; punishment and fine. (“(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b), (c), (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 a county jail for not more than one year, except that such person shall instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.”)
  2. Same.
  3. Same.
  4. Same.
  5. See, e.g., Penal Code 1210.1 PC (also known as Proposition 36); Penal Code 1000 PC [drug diversion programs that apply to people convicted of HS 11350 simple heroin possession].
  6. Health & Safety Code 11351 HS – Possession or purchase for sale of designated controlled substances [including heroin]; 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, 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 pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.”)
  7. 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.”)
  8. Health & Safety Code 11352 HS -- Transportation, sale, giving away, etc., of designated controlled substances [including heroin]; punishment; definition; prosecution for aiding and abetting. (“(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 pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years. (c) For purposes of this section, "transports" means to transport for sale.”)
  9. Health and Safety Code 11352.5 HS -- Sale of heroin; fine in addition to imprisonment.  ("The court shall impose a fine not exceeding fifty thousand dollars ($50,000), in the absence of a finding that the defendant would be incapable of paying such a fine, in addition to any term of imprisonment provided by law for any of the following persons: (1) Any person who is convicted of violating Section 11351 of the Health and Safety Code by possessing for sale 14.25 grams or more of a substance containing heroin. (2) Any person who is convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell 14.25 grams or more of a substance containing heroin. (3) Any person convicted of violating Section 11351 of the Health and Safety Code by possessing heroin for sale or convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell heroin, and who has one or more prior convictions for violating Section 11351 or Section 11352 of the Health and Safety Code.")
  10. 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, endnote 7 above.
  11. Health & Safety Code 11550 HS – Under the influence of [heroin]. (“(a) A person shall not use, or be under the influence of any controlled substance that 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, 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. A person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not more than one year in a county jail. The court may also place a person convicted under this subdivision on probation for a period not to exceed five years.”)
  12. People v. Enriquez (1996) 42 Cal.App.4th 661, 665.
  13. Health & Safety Code 11550 HS – Under the influence of [heroin], endnote 12 above.
  14. Penal Code 1210.1 PC (also known as Proposition 36); Penal Code 1000 PC [drug diversion programs that apply to people convicted of HS 11550 under the influence of heroin].
  15. Vehicle Code 23152(e) VC – Driving under the influence of drugs [including heroin]. (“(e) It is unlawful for a person who is under the influence of any drug to drive a vehicle.”)
  16. Vehicle Code 23536 VC -- Conviction of first violation of § 23152 [including VC 23152(e) driving under the influence of heroin]; punishment.
  17. People v. Enriquez, endnote 12 above.
  18. Health and Safety Code 11365 HS – Being present for heroin use. (“(a) It is unlawful to visit or to be in any room or place where any controlled substances which are 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) or paragraph (2) of subdivision (d) of Section 11055, or which are narcotic drugs classified in Schedule III, IV, or V, are being unlawfully smoked or used with knowledge that such activity is occurring. (b)This section shall apply only where the defendant aids, assists, or abets the perpetration of the unlawful smoking or use of a controlled substance specified in subdivision (a).”)
  19. Penal Code 19 PC – Punishment for misdemeanor [including HS 11365 being present while heroin is used]. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)
  20. 8 U.S.C. 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.”) This means that deportation or removal is possible for immigrants convicted of violating the major California heroin laws.
  21. City of Orange drug crimes defense attorney John Murray represents clients accused of violating California's heroin laws throughout the Los Angeles County courts and Orange County courts. He has a particular focus on charges of driving under the influence of heroin and other drugs.
  22. 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. . . . (b) . . . The findings required for each of the schedules are as follows:(1) Schedule I [includes heroin]. - (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.”) See also Health and Safety Code 11054 HS – Schedule I; substances included. ("(a) The controlled substances listed in this section are included in Schedule I. (c) Opium derivatives. Unless specifically excepted or unless listed in another schedule, any of the following opium derivatives, its salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation. . . . (11) Heroin.")
  23. Heroin History: 1900s, narconon.org.

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