California Health and 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.1
But don't despair, we're here to help. As former cops and prosecutors we have the inside knowledge essential to investigating and defending your bogus drug charges.
Below, our California criminal defense attorneys2 address the following:
If, after reading this article, you have additional questions, we invite you to contact us.
You may also find helpful information in our related articles on California Drug Crimes; Driving Under the Influence of Drugs; Driving Under the Influence of Vicodin; Health and Safety Code 11350 HS Possession of a Controlled Substance; Health and Safety Code 11351 HS Drug Possession for Sale; Health and Safety Code 11352 HS Transporting or Selling a Controlled Substance; Health and Safety Code 11377 HS Methamphetamines; California's Marijuana Laws; Doctor Shopping; California Gun Laws; Legal Defenses; California Proposition 36; and Penal Code 1000 PC California's "Deferred Entry of Judgment" Program.
In order to prove that you are guilty of violating California Health and Safety Code 11550 HS, the prosecutor must prove that you willfully (1) used a "controlled substance" or "narcotic drug", and/or (2) were under the influence of a "controlled substance" or "narcotic drug".3
Let's take a closer look at some of these words and phrases to gain a better understanding of their legal definitions.
Controlled substances and narcotic drugs
"Controlled substances" and "narcotic drugs" are simply terms that are used to describe a class of specific drugs and drug-like substances. In general, these include
- hallucinogens, and
Specific drugs are listed in California Health and Safety Code sections 11054-11058 HS and in Health and Safety Code 11019 HS.4 Some of the most commonly used controlled substances and narcotics include (but are not limited to):
Marijuana is specifically excluded from this law. Offenses involving marijuana use and possession are regulated separately under California's marijuana laws.
But it's not just illegal drugs that subject you to prosecution for this offense. Illegally using or being under the influence of prescription drugs can also lead to a violation of Health and Safety Code 11550 HS California's "using and/or being under the influence of a controlled substance" law.
Some of the most common illegally used prescription drugs that can still subject you to prosecution for this crime include (but are not limited to):
- hydrocodone (generally referred to as Vicodin and commonly seen in connection with driving under the influence of Vicodin), and
- other opiates.
"Using" a controlled substance or narcotic drug
In order for prosecutors to convict you of "using" a drug, your "use" must be current, that is, "immediately prior to arrest".5 What "current" use or "immediately prior to arrest" means is a bit unclear and will be determined on a case-by-case basis. Use within five days of arrest may be enough to support an 11550 HS conviction.6 Use prior to that definitely will not.7
However, we do know that "current use" means that you haven't entered into withdrawal.8 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 (though you may still face prosecution for other drug charges).
"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 of drugs with respect to a DUI case. In a Vehicle Code 23152(a) VC prosecution for driving under the influence of drugs, the driver is only guilty of driving "under the influence" if the drugs
"affect the driver's nervous system, brain, or muscles so as to impair (to an appreciable degree) his/her ability to drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of his/her faculties, using reasonable care, would drive a similar vehicle under like conditions".9
However, Health and Safety Code 11550 HS only requires that you are under the influence "in any detectable manner".10 Impairment or other misconduct isn't necessary to prove you guilty of this charge.
This means that if you are liable for driving under the influence of drugs.and the drug is classified as a "controlled substance or narcotic".you will likely also be liable for Health and Safety Code 11550 as well, because it involves a lesser degree of being "under the influence".
There are a variety of legal defenses that a California defense attorney could argue on your behalf, depending on the circumstances of your arrest. Some of the most common include (but are not limited to):
You weren't under the influence
Sometimes illness, fatigue, or other physical symptoms can mimic signs of drug impairment. If the officers don't find you in possession of any drugs (which is a crime in and of itself) and don't take a blood test to confirm that you have drugs in your system, then the evidence against you is probably pretty weak.
When this is the case, your criminal defense attorney could argue that you weren't under the influence, but were simply suffering from a physiological condition that was unrelated to drug use.
You have a valid, legal prescription for the drug
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.11 This is the case as long as you used the prescribed drug as indicated (that is, you only took the suggested amount at the suggested times).
Producing a counterfeit, forged, or otherwise illegally obtained prescription will not only subject you to prosecution for this charge, but will likely result in prosecution for additional charges as well (for example, prescription fraud).
Similarly, having a variety of prescriptions for the same drug could subject you to prosecution under California doctor shopping law.
Health and Safety Code 11550 HS California's "using and/or being under the influence of drugs" law requires a "voluntary" act of using the drug. If you were surreptitiously "drugged" by another.and didn't willfully ingest a controlled substance or narcotic drug.you would not be guilty of this offense.
Health and Safety Code 11550 HS California's "using and/or being under the influence of a controlled substance" law is a misdemeanor that carries severe consequences. If you are convicted of this charge, you face:
- up to five years of informal probation,
- 90 days (minimum) to one year in a county jail,
- drug counseling, and
- possible community service or labor.12
If you suffer a third conviction of this section within seven years of your first conviction, and you have refuse court-appointed drug treatment, you will be sentenced to a minimum of 180 days in the county jail.13
Being under the influence while possessing a firearm
Another 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, operable gun.14
This hybrid drug offense / California gun law 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 automatically be charged as a felony, carrying a state prison sentence of two to four years.15
However, if the court finds that you are addicted to any narcotic drug.and you possess or acquire a gun (whether loaded or not).even your first offense will be an automatic felony under Penal Code 29800 PC California's "felon with a firearm" law.16
And once you are convicted of a felony offense, Penal Code 29800 PC California's "felon with a firearm" law also imposes a lifetime ban on owning, possessing, or acquiring firearms.17 To learn how to restore your California gun rights, please read our article on Restoring Your California Gun Rights.
Drug rehabilitation is offered in lieu of jail to those who have committed non-violent, drug possession offenses. This type of alternative sentence is available under California Proposition 36 and under Penal Code 1000 PC California's drug diversion or "deferred entry of judgment" program.18 However.
If you are simultaneously convicted of California Health and Safety Code 11550 and
- a separate misdemeanor offense that doesn't involve simple possession or drug use (which includes driving under the influence),19 or
- a felony,
you will be disqualified from participating in this program.20 Similarly, if you are convicted for violating Health and Safety Code 11351 HS California's "drug possession for sale" law or Health and Safety Code 11352 HS California's transporting or selling a controlled substance" law, you will not be entitled to participate in a diversion program.
This is because diversion and rehab programs are reserved only for those persons who need help with their personal addiction issues. Selling drugs is thought to be more criminal in nature. As a result, the state punishes such behavior instead of offering rehabilitation services.
It is also 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.21
If you do qualify for a drug diversion program, you will be subject to drug testing as a condition of probation.22
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
- Vehicle Code 23152(a) California's law against driving under the influence of drugs (or DUID), and
- Health and Safety Code 11350 HS California's law against possessing a controlled substance.
When possession and use charges arise out of the same incident, it may be unlawful for the prosecutor to charge and/or attempt to sentence you for both.
As Rancho Cucamonga criminal defense attorney Michael Scafiddi explains,23 "An attorney who specializes in defending California drug crimes will know when an overzealous prosecutor or ill-informed judge tries to sentence you illegally for more than one crime that involves the same underlying conduct.and will know how to prevent this type of injustice."
Call us for help.
For more information on California drug crimes, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada drug crime defense attorneys are available to answer any questions relating to Nevada's "under the influence of drugs" 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
1Health and Safety Code 11550 HS California's "using and/or being under the influence" law. ("(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, 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.")
2Our California criminal 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.
3California Jury Instructions, Criminal CALJIC 16.060 California's "using and/or being under the influence" law. ("In order to prove this crime, the following element must be proved: A person willfully [and unlawfully] used a controlled substance, namely [.] [; or] [1.] A person was under the influence of a controlled substance, namely .]")
4California Health and Safety Code 11007 HS -- Controlled substance. (""Controlled substance," unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058.")
See also California Health and Safety Code 11019 HS -- Narcotic drugs. (""Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: (a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate. (b) Any salt, compound, isomer, or derivative, whether natural or synthetic, of the substances referred to in subdivision (a), but not including the isoquinoline alkaloids of opium. (c) Opium poppy and poppy straw. (d) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine. (e) Cocaine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof. (f) Ecgonine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof. (g) Acetylfentanyl, the thiophene analog thereof, derivatives of either, and any salt, compound, isomer, or preparation of acetylfentanyl or the thiophene analog thereof.")
5Bosco v. Justice Court of Exeter-Farmersville Judicial Dist. (1978) 77 Cal.App.3d 179 ("The implication from this opinion is that in order to secure a conviction under [Health and Safety Code] section 11550 [California's "using and/or being under the influence" law] the People must show that the defendant had used a controlled substance immediately prior to the arrest.")
6People v. Jones (1987) 189 Cal.App.3d 398, 405. ("The evidence could reasonably be construed to show that appellant used heroin as little as 24 hours before he provided the urine sample, which, in turn, was some 3 hours after his arrest. Moreover, even if the evidence were construed to show use within forty-eight hours before appellant's arrest, such usage two days before arrest could clearly qualify for a finding of current use under the previously-cited statement in Velasquez to the effect that use less distant than five days prior to arrest might support a Health and Safety Code section 11550 conviction .")
7People v. Velasquez (1976) 54 Cal.App.3d 695, 700. ("The "use" proscribed by section 11550 of the Health and Safety Code is a current use, not a use in the past. Even though defendant lied in claiming to have been free of narcotics for several months, the People's own testimony supports no usage closer than the five-to seven-day period testified to by their own expert. We conclude that, while usage no more distant than that might support a finding of danger to become (again) addicted, it does not support a finding of a current addiction and use.")
8See People v. Jones, at 405, endnote 6, above. ("If a distinction is to be made in the cases applying California Health and Safety Code section 11550, it is as follows: Current continuing use of narcotics is to be distinguished from a past, discontinued use. Thus, withdrawal from the use of narcotics is not a crime; it is in fact the direct result of discontinuing the crime of use.")
9CALJIC 16.830 -- Misdemeanor Driving Under the Influence.
10CALJIC 16.060 -- Under the influence. ("[A person is under the influence of a controlled substance if, after using it, the substance has appreciably affected the nervous system, brain, muscles, or other parts of the person's body, or is creating in [him] [her] any perceptible, abnormal, mental, or physical condition.]")
See also 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) 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.")
11Health and Safety Code 11550 HS California's "using and/or being under the influence" law. ("(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, 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 [italics added].")
12Health and Safety Code 11550 HS California's "using and/or being under the influence" law. ("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.")
13See same. ("(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.")
14See same. ("(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.")
15See same. ("(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.")
16Penal Code 29800 PC California's felon with a firearm law. ("(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.")
18Health and Safety Code 11550 HS California's "using and/or being under the influence" law. ("(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.")
19People v. Canty (2004) 32 Cal.4th 1266, 1281. ("The purpose and intent expressed in the preamble to these statutes tends to reinforce the conclusion that misdemeanor driving while under the influence of drugs is not an activity similar to the conduct that underlies those misdemeanors that merely involve personal interaction with drugs, described in section 1210, subdivision (d). As explained more fully below, the statutes that prohibit driving while under the influence of drugs contemplate graduated levels of incarceration as well as other restrictions, such as suspension or revocation of a drivers license, and thus do not appear to be "simple" offenses for purposes of the probation and diversion statutes.")
20See Penal Codes 1210.1 (also known as Proposition 36) and Penal Code 1000 PC.
21Penal Code 1000 PC -- Drug diversion. (Penal Code 1000 applies when. "(1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. (2) The offense charged did not involve a crime of violence or threatened violence. (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. (4) The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed. (5) The defendant's record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment pursuant to this chapter within five years prior to the alleged commission of the charged offense. (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply to the defendant. Upon the agreement of the prosecuting attorney, law enforcement, the public defender, and the presiding judge of the criminal division of the superior court, or a judge designated by the presiding judge, this procedure shall be completed as soon as possible after the initial filing of the charges. If the defendant is found eligible, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. This procedure is intended to allow the court to set the hearing for deferred entry of judgment at the arraignment. If the defendant is found ineligible for deferred entry of judgment, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. The sole remedy of a defendant who is found ineligible for deferred entry of judgment is a postconviction appeal.")
22See same. ("(e) Any defendant who is participating in a program referred to in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urine analysis results shall not be admissible as a basis for any new criminal prosecution or proceeding.")
23Rancho Cucamonga criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients accused of violating California's drug laws in San Bernardino, Riverside, Banning, Fontana, Joshua Tree, Barstow and Victorville.
24Please feel free to contact our Nevada drug crime defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's "under the influence of drugs" laws. Their Nevada law offices are located in Reno and Las Vegas.