According to defense attorney David F. Poblete2:
“You are most likely to face charges under HS 11365 if you are arrested at a scene where drug use is taking place—but there is no evidence that you are guilty of either possession of a controlled substance or being under the influence of a controlled substance. What this means in practice is that people are often charged with presence at the scene of unlawful drug use when they have done nothing wrong other than being in the wrong place at the wrong time.”
The legal definition of presence for unlawful use of controlled substances
The elements of the crime of being present for unlawful controlled substance use are:
- You willfully and intentionally visited or were present in a place where someone else was smoking or using one of a list of controlled substances (a “place” can include a car3);
- You knew that the other person intended to smoke or use the controlled substance;
- You intended to aid and abet the other person in smoking or using the controlled substance;
- You did or said something that did in fact aid or abet them; and
- You knew that your words or conduct aided or abetted them in using the controlled substance.4
Note that even though Health & Safety Code 11365 revolves around “being present” while someone else uses illegal controlled substsances, just being present isn’t enough. You have to also do something to aid or abet the drug use.
Example: Deborah goes to a party where a number of people are snorting cocaine. She knows the cocaine use is going on and doesn’t say anything about it—but she also doesn’t do anything to help anyone who is using cocaine.
In fact, because she disapproves of drugs, she walks away from or ignores anyone who expresses an intention to snort cocaine.
Deborah is not guilty under HS 11365 just for being present at the party.
You “aid or abet” the unlawful use of controlled substances if:
- You know another person intends to use an illegal controlled substance;
- You specifically intend to aid, facilitate, promote, encourage or instigate their use of the substance; and
- You do in fact aid, facilitate, promote, encourage or instigate their use of the substance.5
Example: Luis has a new girlfriend named Andrea. After they go on several dates, Luis discovers that Andrea is a regular heroin user. Luis doesn’t use heroin himself, but he likes Andrea a lot and doesn’t object to her habit.
One night when Luis is in Andrea’s apartment, he encourages her to “shoot up.” He does so because he thinks it will make her happy and make her like him more. Andrea proceeds to use heroin.
Luis may be guilty of being present for illegal drug use because he encouraged Andrea to use heroin in his presence.
Controlled substances covered by HS 11365
Health & Safety Code 11365 HS applies only to a select list of controlled substances, including:
- Cocaine base;
- Peyote; and
- Gamma hydroxybutyric acid (“GHB”).6
California’s law against being present while controlled substances are smoked or consumed does not apply to marijuana.7
(The set of drugs covered by HS 11365 is very similar to that covered by Health & Safety Code 11352 HS sale or transportation of a controlled substance.8)
Health & Safety Code 11365 penalties
Being present while controlled substances are being used is a California misdemeanor.9
The potential penalties are:
- Misdemeanor (summary) probation, which may include a condition that you complete a drug treatment program;
- Up to six (6) months in county jail; and/or
- A fine of up to one thousand dollars ($1,000).10
If you are convicted of being present for the use of controlled substances under Health & Safety Code 11365, you may be eligible for California’s “deferred entry of judgment” drug diversion program.11
Deferred entry of judgment allows you to have the charges suspended while you complete a drug rehabilitation program. Once you’ve completed the program, the charges are dismissed.
But to be eligible, you have to meet certain conditions. For example, you need to have no prior controlled substances convictions, and the current charges cannot have involved violence or the threat of violence.12
Legal defenses against charges of being present for illegal drug use
Even with the potential availability of drug diversion, in some cases it may make more sense to fight charges of being present for the use of unlawful controlled substances with one or more common legal defenses to California drug charges.
For example, you may not have known that drug use was taking place or that your actions were aiding or abetting drug use. If that is the case, you are not guilty of aiding and abetting/being present for illegal drug use.
Another common legal defense to HS 11365 charges is that you did not say or do anything to aid or abet the use of controlled substances.
Call us for help…
For questions about the crime of Health & Safety Code 11365 presence for unlawful controlled substance use, 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.
1 Health & Safety Code 11365 HS – Presence in room or place where designated controlled substances smoked or used; aiding or abetting. (“(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). This subdivision is declaratory of existing law as expressed in People v. Cressey (1970) 2 Cal. 3d 836.”)
2 Lancaster drug crimes defense attorney David F. Poblete is an energetic young attorney who focused on criminal defense work since his days as a law student at Loyola Law School in Los Angeles. Poblete regularly defends charged in the Superior Courts of Los Angeles, Orange and San Diego Counties.
3 People v. Lee (1968) 260 Cal.App.2d 836, 840-41.
4 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2401 – Aiding and Abetting Unlawful Use of Controlled Substance (Health & Saf. Code, § 11365).
5 CALCRIM 2401 – Aiding and Abetting Unlawful Use of Controlled Substance (Health & Saf. Code, § 11365).
6 Health & Safety Code 11365 HS – Presence in room or place where designated controlled substances smoked or used; aiding or abetting, endnote 1 above.
See also Health & Safety Code 11054 and 11055 HS.
8 Compare same to Health & Safety Code 11352 HS – Sale/transportation of certain controlled substances.
9 Health & Safety Code 11365 HS – Presence in room or place where designated controlled substances smoked or used; aiding or abetting, endnote 1 above.
See also Penal Code 19 PC – Punishment for misdemeanor [such as being present where controlled substances are being used]; punishment not otherwise prescribed.
11 Penal Code 1000 PC – Application of chapter to certain violations.