California Drug Laws Involving Hydrocodone ("Vicodin")

Vicodin (hydrocodone) is a frequently prescribed pain-killer. But in California, if you sell it on the black market, or possess it without a valid prescription, you face serious felony charges.

In this article, our California drug crimes defense attorneys1 provide an overview on the laws that relate to hydrocodone's possession, use and sales by addressing the following:

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

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

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

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

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

3.5. Driving under the influence of hydrocodone

4. Legal Defenses to California Hydrocodone-Related Charges

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

You may also find helpful information in our related articles on California Drug Crimes; Health and Safety Code 11350 HS Personal Possession of a Controlled Substance; Health and Safety Code 11351 HS Possessing or Purchasing Controlled Substances for Sale; Health and Safety Code 11352 HS California's Law Against Transporting or Selling Controlled Substances; Health and Safety Code 11550 HS California's Under the Influence Law; Doctor Shopping and Prescription Fraud; Driving Under the Influence of Drugs; Driving Under the Influence of Vicodin; California DUI Defense Attorneys; Cocaine; Heroin; Gamma-Hydroxybutyric Acid ("GHB"); Ketamine; Phencyclidine ("PCP"); Ecstasy; Codeine; Marijuana; California Legal Defenses; California's Search and Seizure Laws; California Search Warrants; Police Misconduct; The Legal Defense of Entrapment; Misdemeanors; Felonies; Proposition 36; Penal Code 1000 PC Drug Diversion; and California Drug Courts.

1. The History of Hydrocodone

Hydrocodone (commonly referred to as "Vicodin", "Vikes", "Hydro" and "Norco") is a widely prescribed... and frequently abused...drug.  First manufactured in Germany in 1920, it was approved for sale in the United States by the U.S. Food and Drug Administration ("FDA") in 1943.2

Hydrocodone is a pain reliever and cough suppressant.  It is commonly available in capsules, tablets and syrup.  Most of the time, hydrocodone (or dihydrocodeinone) is mixed with other drugs such as acetaminophen or ibuprofen (the active ingredients, respectively, in Tylenol and Advil). In fact, most people interchangeably refer to hydrocodone as "Vicodin" which is a combination of hydrocodone and acetaminophen.

When hydrocodone is used, possessed or prescribed in its pure form (which is rarely the case), it is listed under the United States "Controlled Substances Act" as a "Schedule II" drug.3 When combined with other medications...and its dose is thereby reduced...it is listed as a "Schedule III" drug.

"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.4

"Schedule III" drugs

  1. have a potential for abuse that is less than the drugs listed in Schedules I and II ("Schedule I drugs" have no accepted medical use and a very high potential for abuse),
  2. have a currently accepted medical use, and
  3. can lead to moderate or low physical dependence or high psychological dependence if abused.5
2. Hydrocodone's Medical Uses

Hydrocodone is used

  1. to treat moderate to severe pain, and
  2. as a cough suppressant.

While it doesn't cure pain, hydrocodone blocks pain signals that are sent to the brain, acting as a very effective pain reliever.

Hydrocodone is similar to codeine, but it is much more potent.  In fact, its strength is compared to that of morphine and heroin...as are its calming, euphoric effects.  It's because of these effects...and the fact that Vicodin is relatively easy to obtain though "doctor shopping" and prescription fraud...that hydrocodone is frequently abused.6

In fact, the U.S. Drug Enforcement Administration ("DEA") is considering imposing tighter restrictions on all hydrocodone-related products by classifying the entire group as "Schedule II" controlled substances.7

And despite common misperception, people die more frequently from abusing prescription drugs than from abusing illicit drugs.8

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

Because Vicodin is so potent and easily abused, there are many California laws that regulate its use, possession and sales.

Some of the most common include:

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

You violate Health and Safety Code 11350 HS California's "personal possession of a controlled substance" law anytime you possess hydrocodone without a valid prescription.9 And as Santa Ana criminal defense attorney John Murray10 explains, "This is the case whether you possess hydrocodone in its pure form, in Vicodin or in another drug combination."

Having a valid prescription is not necessarily enough to excuse your hydrocodone possession.  Your possession of the drug must be in strict compliance with the prescription.  This means that

  1. possessing more of the narcotic than is authorized in the prescription,
  2. possessing more than one prescription, or
  3. possessing someone else's prescription

are still violations of this law.

You additionally violate this law when you possess certain other controlled substances as well.  These include (but are not limited to):

If you violate Health and Safety Code 11350 HS California's law against possessing hydrocodone, you face a felony, punishable by 16 months, or two or three years in the California state prison and a maximum $20,000 fine.12

Fortunately, drug diversion is typically available in connection with this offense.  California "drug diversion" allows eligible defendants to serve their time in drug rehabilitation in lieu of incarceration.  Drug diversion is permissible under

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

When you possess or purchase hydrocodone for sale, you violate Health and Safety Code 11351 HS California's "possession or purchase of a controlled substance for sale" law.  And because this offense involves the intent to sell hydrocodone...and not just the intent to consume it personally...it is punished more severely than HS 11350 above.13

A conviction for this offense is a felony, punishable by two, three or four years in the state prison and the same maximum $20,000 fine.14 And unlike a personal possession conviction, a conviction for possessing or purchasing hydrocodone for sale does not allow you to participate in a drug diversion program.

However, if your California criminal defense lawyer can persuade the prosecutor, judge or jury that you actually only possessed the Vicodin for your own personal use...and not to sell it...drug diversion would still be available with the reduced personal possession charge.

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

Health and Safety Code 11352 HS California's "transporting or selling a controlled substance" law is the most serious of these California hydrocodone-related offenses.  If you suffer a conviction for selling or transporting Vicodin...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.15

A conviction for transporting hydrocodone across more than two county lines subjects you to three, six or nine years in prison and the same maximum fine.16

And unless your attorney can arrange a plea bargain to a lesser charge of personal possession, you will not be entitled to participate in drug diversion.

It is also important to understand that a conviction for any of these California hydrocodone-related offenses may lead to your removal or deportation if you are a legal immigrant or alien.17 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 hydrocodone" law

If you are under the influence of pure hydrocodone, Vicodin or any other hydrocodone-containing substance...and you did not use the narcotic in connection and compliance with a valid prescription...you violate Health and Safety Code 11550 HS California's "being under the influence of a controlled substance" law.18

You are "under the influence" of hydrocodone if the drug has impaired your physical or mental abilities "in any detectable manner".19 Although being under the influence of Vicodin is a misdemeanor...subjecting you to possible jail time...drug diversion is available in connection with this offense.20

3.5. Driving under the influence of hydrocodone

You violate Vehicle Code 23152a VC California's driving under the influence of drugs law anytime you drive under the influence of a drug...prescribed or not.21

You drive "under the influence" of a drug when the drug 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."22

And because Vicodin's use is so prevalent, California officers routinely make arrests for driving under the influence of Vicodin / hydrocodone.

Even if you have a valid prescription for Vicodin, it will likely come with a warning that states that this narcotic may impair your ability to drive a car.

The good news is that a skilled California DUI attorney knows the most effective ways to challenge the claim that you were under the influence of hydrocodone at the time of your arrest.

4. Legal Defenses to California Hydrocodone-Related Charges

Fortunately, there are a variety of legal defenses to California hydrocodone-related charges that your California drug crimes defense attorney could present on your behalf.  These defenses will, of course, vary, depending on the circumstances of your case.  However, the following are some that commonly arise in connection with California drug offenses:

  • your use and/or possession were consistent with a valid prescription,
  • you were not driving under the influence of Vicodin but were instead suffering from fatigue, illness, nervousness or some other explanation unrelated to drug use at the time of your arrest,
  • innocence / mistaken identity (the illegally possessed hydrocodone actually belonged to someone else, but the police jumped to the incorrect conclusion that it was yours),
  • the police violated California's search and seizure laws (perhaps because they discovered your hydrocodone when they had no legal right to search you or because they seized the narcotic even though it was located in an area that was outside the scope of a valid California search warrant), and/or
  • the officers otherwise committed police misconduct by engaging in unethical or illegal behavior (perhaps luring you or coercing you into selling or transporting Vicodin...a type of misconduct that allows you to present the legal defense of entrapment).
Call us for help...

For questions about California's hydrocodone-related drug laws, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's drug possession 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.23

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.

2What is Hydrocodone? About its Science, Chemistry and Structure.

3California 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:... (I) Hydrocodone...")

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...(3) Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium. (4) Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active nonnarcotic ingredients in recognized therapeutic amounts. Additionally, oral liquid preparations of dihydrocodeinone containing the above specified amounts may not contain as its nonnarcotic ingredients two or more antihistamines in combination with each other. (5) Not more than 1.8 grams of dihydrocodeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active nonnarcotic ingredients in recognized therapeutic amounts.")

421 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 hydrocodone-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 Vicodin-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. - (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...").

5See same.

6Pat Moore Foundation - What is Hydrocodone?

7U.S. DEA - Hydrocodone.

8The New York Times - Legal Drugs Kill Far More Than Illegal, Florida Says.

9California 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 hydrocodone-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 Vicodin-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.")

10Santa Ana criminal defense attorney John Murray represents clients accused of violating California's Vicodin-related charges throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster, as well as in the South Bay (including Long Beach and Torrance).

11See Health and Safety Code 11350 HS - California's law against possessing hydrocodone, endnote 9, above.

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 hydrocodone-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 hydrocodone 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 Vicodin-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.

15Health 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 hydrocodone-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 Vicodin-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.

16See Health and Safety Code 11352 HS California's law against transporting or selling hydrocodone, endnote 17, above.

178 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 hydrocodone and Vicodin are controlled substances, offenses involving these narcotics are California crimes that could lead to deportation.

18California 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 hydrocodone], 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 Vicodin-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.")

19People 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, hydrocodone] 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.")

20See Health and Safety Code 11550 HS California's being under the influence of hydrocodone law, endnote 20, above.

21California 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.")

22See People v. Enriquez, endnote 21, above.

23Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's drug crimes. Our Nevada law offices are located in Reno and Las Vegas.

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