Possession of codeine in California without a valid prescription – or outside the prescription’s scope – is generally a misdemeanor that the court can dismiss if you do drug diversion. Though it is always a felony to transport, sell, or possess with the intent to sell codeine, and you cannot avoid incarceration through diversion.
|California codeine crime||Maximum jail/prison term (most cases) |
|Simple possession – 11350 HS|| |
|Possession for sale – 11351 HS|| |
|Selling/transporting (“trafficking”) – 11352 HS|| |
|Being under the influence – 11550 HS|| |
|Driving under the influence – 23152f VC|| |
Below our California criminal defense attorneys provide an overview of the state codeine laws including potential penalties and defenses:
- 1. Possessing codeine (11350 HS)
- 2. Possessing codeine for sale (11351 HS)
- 3. Transporting or selling codeine (11352 HS)
- 4. Being under the influence of codeine (11550 HS)
- 5. Driving under the influence of codeine (23152f VC)
- 6. How to fight criminal charges
- Additional resources
1. Possessing codeine (11350 HS)
California Health and Safety Code 11350 HS criminalizes possessing drugs for personal use, referred to as “simple possession.” If you are charged with possession of codeine, the D.A. has the burden to prove that you had either:
- actual possession, where you were knowingly holding the codeine or carrying it on your person; or
- constructive possession, where you knowingly had control over the codeine, such as keeping it in your house; or
- joint possession, where you and at least one other person shared control of the codeine.
Codeine possession is usually prosecuted as a misdemeanor in California with penalties of 1 year in jail and/or $1,000 in fines. In most circumstances, you can avoid jail and get the charge dismissed with no conviction if you complete a drug diversion program such as:
Prosecutors can treat simple possession of codeine as a felony if you were previously convicted of specific offenses such as murder, gross vehicular manslaughter while intoxicated, or any sex crime where you had to register as a sex offender. Felony penalties for codeine possession carry fines of up to $10,000 and a jail sentence of:
- 16 months,
- 2 years, or
- 3 years.1
See our related article, possessing a controlled substance while armed (HS 11370.1).
2. Possessing codeine for sale (11351 HS)
California Health and Safety Code 11351 HS prohibits possessing drugs for the purpose of selling them.2 If you are charged with planning to sell codeine in your possession, prosecutors will typically introduce such evidence as:
- you were found with more drugs than recreational users typically have;
- your drugs were in separate containers or baggies “ready to sell”;
- you were found with a gun, which the D.A. will argue was to protect yourself during drug sales;
- you were found with large amounts of cash, which is what drugs are typically purchased with; and/or
- police spotted you in locations notorious for selling drugs.3
As a felony, possession of codeine for sale carries two, three, or four years in California State Prison and up to $20,000.4
3. Transporting or selling codeine (11352 HS)
California Health and Safety Code 11352 HS forbids transporting or selling drugs (called “trafficking”). In order for the court to convict you of trafficking codeine, the D.A. would have to show that you either:
- transported codeine,
- sold codeine,
- gave away codeine,
- imported codeine into California,
- furnished codeine,
- administered codeine, or
- offered to do any of the above.
The felony of trafficking codeine carries three, four, or five years in California State Prison.5 Though in cases where the codeine was transported across more than two county lines – and you had the intent to sell the codeine at the destination – the punishment increases to three, six, or nine years in prison.6
4. Being under the influence of codeine (11550 HS)
California Health and Safety Code 11550 HS criminalizes being under the influence of drugs, even if no drugs are around when the police find you.7 The elements the D.A. has to prove for you to be convicted of being “under the influence” of codeine are:
- your physical or mental abilities are impaired “in any detectable manner;” and
- the reason for this impairment is drugs; and
- your codeine use was not consistent with a valid prescription.8
This is the case whether you are under the influence of straight codeine or whether the codeine is an ingredient in another medication such as
- Tylenol or
- cough syrup.
Note that you can also be charged with violating HS 11550 even if you have a prescription for codeine—provided that you are using it other than in accordance with the prescription (for example, taking far more of it than you have been prescribed).
It is a misdemeanor to be under the influence of codeine, carrying up to one year in jail, though you can typically avoid jail and a conviction by finishing a diversion program.9
5. Driving under the influence of codeine (23152f VC)
California Vehicle Code 23152(f) VC forbids driving a motor vehicle while under the influence of drugs.10 In order for the court to convict you of driving while impaired by codeine, the D.A. has to demonstrate to the court that the codeine has:
“so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.”11
Driving under the influence of drugs (DUID) is usually a misdemeanor and punished like driving under the influence of alcohol (DUI). First-time convictions carry such penalties as a maximum of six months in jail, up to $1,000 in fines, a driver’s license suspension, and DUI school.12
6. How to fight criminal charges
Here at Shouse Law Group, we have represented literally thousands of people charged with codeine crimes. In our experience, the following seven defenses have proven very effective with prosecutors, judges, and juries in California:
1) You had a valid prescription
Certainly, you are allowed to consume codeine if we can show you had a current and valid prescription, and you used the drugs in accordance with the prescription. You could still be convicted if you possessed someone else’s codeine, if you possessed more than the prescribed amount of the drug, or if you obtained multiple prescriptions from different doctors who did not know about the other prescriptions (a type of prescription fraud known as “doctor shopping”).
2) The codeine surfaced from an illegal search and seizure
If we can convince the judge that the police violated your Fourth Amendment rights – for example, by not getting a search warrant when one was necessary – the judge may disregard the codeine as evidence. As a result, the D.A. may have to dismiss the case for lack of evidence.13
3) The police entrapped you
It is unlawful for an undercover officer to unduly pressure you to purchase or sell codeine when you have no predisposition to do so. Whenever we can show that you would not have violated codeine laws but for law enforcement’s coercion (“entrapment“), the court should drop the case.
4) You had no knowledge of the codeine being there
We see many cases where people plant drugs on our clients or accidentally leave drugs in our clients’ homes or cars, and our clients are completely innocent since they had no idea. Unless the D.A. can show the court beyond a reasonable doubt you realized the codeine was there, then the court cannot convict you for violating any codeine laws.
5) Codeine was not impairing you
When you are facing charges for DUID or being under the influence of codeine, we may be able to use your medical records to show that you were suffering from a medical condition or an episode which mimicked being high on drugs but was in fact unrelated, such as a diabetic coma.
6) Another person falsely accused you
If someone is trying to get you into trouble by hurling false accusations, we would search their communications (such as their texts or voicemails) for indications of their motivation to lie to the police. This may raise a “reasonable doubt” and compel the D.A. to drop the charge.
7) You had no intent to sell the codeine
We may be able to reduce a possession for sale charge down to simple possession by explaining to the prosecutors that they have insufficient evidence to prove intent to sell. For example if police saw you in an area known for selling drugs, we can argue that you were there for innocent reasons such as shopping, visiting a friend, or simply taking a walk.
When crafting our defense in cases involving codeine laws, we rely on such evidence as eyewitnesses, surveillance video, and if necessary expert witnesses to testify how the state mishandled the drugs in the lab and therefore cannot serve as trustworthy evidence.
For help or more information beyond California codeine laws, refer to the following:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Codeine Sulfate – WebMD article about the drug’s properties and treatment.
- Codeine Information – U.S. Food and Drug Administration fact-sheet on codeine.
- Codeine – Alcohol and Drug Foundation overview of codeine.
- California Health and Safety Code 11350 HS. See also California Health and Safety Code 11372 HS. California Penal Code 1210.1 PC. California Penal Code 1000 PC.
- California Health and Safety Code 11351 HS.
- California Health and Safety Code 11351.5 HS.
- California Health and Safety Code 11352 HS.
- California Health and Safety Code 11550 HS.
- People v. Enriquez (1996) 42 Cal.App.4th 661.
- See note 7.
- California Vehicle Code 23152f VC.
- See note 8.
- See note 10.
- See People v. Mooring (Cal.App. 2017)