California Health & Safety Code 11550 HS
Using and/or Being Under the Influence of Drugs

California Health & Safety Code 11550 HS regulates drug use. Willfully using or being under the influence of a “controlled substance” or an illegally obtained narcotic drug subjects you to prosecution under this section.

A variety of drugs are classified as “controlled substances” and “narcotic drugs”. Some of the most commonly used illicit drugs include heroin, cocaine, methamphetamine, and PCP. Some of the most commonly used prescribed drugs that can still subject you to prosecution for this offense include codeine, morphine, hydrocodone (otherwise known as Vicodin), and several other opiates.

• Prescriptions

  Whether the drug was “legally obtained” is critical. If you possess a legal, valid prescription from someone licensed to practice medicine in California, you will be exempt from prosecution under this law.

  This defense, however, has two caveats: 1) you are not permitted to “self-prescribe” a controlled substance, and 2) the prescription must be for a “legitimate medical purpose” prescribed in the usual course of medical practice.

  Producing a counterfeit, forged or otherwise illegally obtained prescription will subject you to further criminal charges. Additionally, this defense only applies if you have used an authorized amount of the prescribed drug.

How Does the Prosecutor Prove that I was Using or Under the Influence of a Controlled Substance?

In order to prove that you are guilty under California Health and Safety Code 11550 HS, the prosecutor must prove that you willfully (1) used a prohibited drug, and/or (2) were under the influence of a prohibited drug.

• “Using” a controlled substance or narcotic drug

  In order to be considered “using” a drug, your “use” must be current. The meaning of “current” use is a bit unclear and may be determined case-by-case. California courts have held that current use means “immediately prior to arrest” ¹, although that period of time can be as far back as five to seven days ².

  *Current “use” means that you haven’t entered into withdrawal. ³ If you are suffering from withdrawal then your body is adjusting to being without the drug. Withdrawal symptoms therefore indicate past drug use which entitles you to an acquittal of this charge.

• “Under the influence” of a controlled substance or narcotic drug

  Being under the influence of a drug under California Health and Safety Code 11550 HS is different from being under the influence with respect to a California DUI case.

  Health and Safety Code 11550 HS only requires that you are under the influence “in any detectable manner” ⁴. Impairment or other misconduct isn’t necessary to prove you guilty of this charge.

What are the Defenses to Using or Being Under the Influence of a Controlled Substance?

There are a variety of defenses that a California drug crimes defense attorney could argue on your behalf, depending on the circumstances of your arrest. Two of the most common that apply to California Health and Safety Code 11550 include:

• Having a valid, legal prescription (described above), or
• Unknowingly or unwillingly taking the drug. This crime requires a “voluntary” act of using the drug. If you were “drugged” by another, you would not be guilty of this offense.

What are the Penalties and Punishments for Using or Being Under the Influence of a Controlled Substance?

California Health and Safety Code 11550 is a misdemeanor that carries severe consequences. If you are convicted of this charge, you face:

• Up to five years of informal probation,
• A minimum of 90 days, and up to one year, in a county jail,
• Drug counseling, and
• Possible community service or labor.

If you suffer a third conviction of this section within seven years of your first conviction, and you have refused court-appointed drug treatment, you will be sentenced to a minimum of 180 days in the county jail.

• Additional enhancement

  A separate offense under California’s Health and Safety Code section 11550 is being under the influence of cocaine, cocaine base, heroin, methamphetamines “meth”, or PCP while possessing a loaded gun.

  This offense is a “wobbler” which means that it may be charged as either a misdemeanor or a felony. If convicted of this offense, you face imprisonment in a county jail or in the California State Prison. Each subsequent offense will be a felony, carrying a state prison sentence of two to four years.

In Lieu of Jail, Can I Serve My Sentence in a Drug Rehabilitation Center?

Most likely, yes. Drug rehabilitation is offered to those who have committed non-violent, drug possession offenses. It is available to help those who suffer with drug problems. This type of alternative sentence is available under California Proposition 36 and under California Penal Code 1000 PC (otherwise known as “deferred entry of judgment” or “ drug diversion”). But…

If you are simultaneously convicted of California Health and Safety Code 11550 and

1. A separate misdemeanor offense that doesn’t involve simple possession or drug use, or
2. A felony,

you will be disqualified from participating in this program. It is important to note that there are additional conditions that may also exclude you from diversion. If you are excluded from diversion, you have the right to appeal that decision.

If you do qualify for a drug diversion program, you will be subject to drug testing as a condition of probation.

Using or Being Under the Influence of a Controlled Substance and Other Related Charges

Depending on the circumstances surrounding your California Health and Safety Code 11550 HS arrest, you may be charged with additional offenses as well. Some of the most common include California driving under the influence of drugs (California DUID) and personal possession of a controlled substance under California Health and Safety Code 11350 HS.

*When possession and use charges arise out of the same incident, it may be unlawful for you to be charged with and/or sentenced for both. A qualified California drug crimes defense lawyer will know when (1) multiple charges have been unlawfully filed against you, or (2) you have been illegally sentenced.

For more information on California drug crimes, we invite you to contact us. We have local criminal law offices in Ventura, Van Nuys, Orange County and all surrounding Southern California areas.

Legal Case References:

¹ Bosco v. Justice Court of Exeter-Farmersville Judicial Dist. (App. 5 Dist. 1978) 143 Cal.Rptr. 468, 77 Cal.App.3d 179 (Stands for the rule that your “use” must be immediately prior to your arrest)

² People v. Velasquez (App. 2 Dist. 1976) 126 Cal.Rptr. 656, 54 Cal.App.3d 695 (Holds that “immediately prior to arrest” can be as far back as five to seven days)

³ People v. Jones (App. 5 Dist. 1987) 234 Cal.Rptr. 408, 189 Cal.App.3d 398 (States that a person who is in withdrawal is considered a “past” and not a “current” drug user)

⁴ People v. Enriquez (App. 6 Dist. 1996) 49 Cal.Rptr.2d 710, 42 Cal.App.4th 661 (Distinguishes “under the influence” for purposes of California Health and Safety Code 11550 HS and a California DUI)

Join us to discuss your criminal case at any of our
local offices: You can also contact us 24/7 at
888.327.4652 for a free consultation