California Health & Safety Code 11365 HS makes it a misdemeanor for a person knowingly to be present at a place where controlled substance use is occurring, if the person aids or abets the drug use in some way. A conviction is punishable by up to six months in county jail.
- encouraging someone to shoot up with heroin and the other person does so.
- giving a person a straw to snort cocaine with.
- handing people hypodermic needles at a party for the purposes of drug use.
Criminal defense lawyers draw upon several legal strategies to help defendants contest charges under this statute. A few common ones include showing that an accused:
- did not aid or abet a drug user,
- did not know that someone was using controlled substances, and/or
- had his/her constitutional rights violated by the police.
A violation of California Health and Safety Code Section 11365 is a misdemeanor offense (as opposed to an infraction or a felony).
These drug crimes are punishable by:
- custody in county jail for up to six months, and/or
- a fine of up to $1,000.
Our California criminal defense attorneys will highlight the following in this article:
- 1. How does California law define “being present for illegal drug use”?
- 2. Are there legal defenses?
- 3. What are the penalties?
- 4. Are there related offenses?
1. How does California law define “being present for illegal drug use”?
A prosecutor must prove the following elements to successfully convict defendants under this statute:
- they willfully and intentionally visited or were present in a place where someone else was smoking or using a “controlled substance,”1
- they knew that the other person intended to smoke or use the controlled substance,2
- they intended to aid and abet the other person in smoking or using the controlled substance,
- they did or said something that did in fact aid or abet them,3 and
- they knew that their words or conduct aided or abetted them in using the controlled substance.4
As to the first element, note that a “place” can include a car.5
For purposes of this code section, people “aid or abet” the unlawful use of controlled substances if they:
- know another person intends to use an illegal controlled substance,
- specifically intend to aid, facilitate, promote, encourage or instigate the use of the substance, and
- do in fact aid, facilitate, promote, encourage or instigate the use of the substance.6
“Controlled substances” pursuant to this law include drugs like:
- cocaine base,
- peyote, and
- Gamma hydroxybutyric acid (“GHB”).7
Note that this code section does not apply to marijuana.
2. Are there legal defenses?
People accused of a crime under this statute can challenge the accusation with a legal defense. Three common defenses include accused people showing that:
- they did not aid or abet.
- they did not know someone was using drugs,
- law enforcement violated one of their constitutional rights.
2.1 No aiding or abetting
Recall that people are only guilty under this law if they actually aid or abet someone in using drugs. Therefore, it is always a defense for defendants to show that they did not help or encourage a person to use drugs in any way. Perhaps, for example, a person just watched someone use a controlled substance.
2.2 No knowledge
Recall, too, that defendants are not guilty of this offense if they had no knowledge that a person was using drugs. A defense, then, is for an accused to show that he/she had no knowledge of drug use. Maybe, for example, a person gave someone a straw, but had no idea that the person was using it to snort cocaine.
2.3 Violation of a constitutional right
Defendants can always try to challenge a charge under this law by showing that law enforcement violated one of their constitutional rights.
For example, maybe an officer:
- conducted an unlawful search or seizure,
- stopped or arrested the defendant without probable cause,
- coerced a confession, or
- failed to read the defendant his/her Miranda rights.
If any of the above applies, then a judge could reduce or drop a defendant’s charges.
3. What are the penalties?
A violation of HS 11365 is a misdemeanor.
Misdemeanor convictions under this law are punishable by:
- custody in county jail (as opposed to state prison) for up to six months, and/or
- a fine of up to $1,000.8
Note that a judge does have the discretion to award a defendant with misdemeanor (or summary) probation in lieu of jail time. If a judge does, then he/she typically includes community service as a probation condition.
Note also that if a person is convicted under HS 11365 he/she may be eligible for California’s “deferred entry of judgment” drug diversion program.
Deferred entry of judgment allows people to have their charges suspended while they complete a drug treatment program. Once they have completed the program, their charges are dismissed.
Eligibility for this pretrial diversion program depends on several factors, like:
- whether the defendant has a criminal record, and
- if the defendant violated the law while using violence or a threat of violence.9
4. Are there related offenses?
There are three crimes related to being present for illegal drug use. These are:
- under the influence of a controlled substance – HS 11550,
- possession of a controlled substance – HS 11350, and
- operating or maintaining a drug house – HS 11366.
4.1 Under the influence of a controlled substance – HS 11550
Per Health and Safety Code 11550, under the influence of a controlled substance is the crime where people:
- are found under the influence of a controlled substance or a narcotic drug, and
- fail to have a lawful prescription for the drug.
Note that a person will have to engage in the use of a controlled substance to be under the influence of one.
Some of the most common controlled substances involved with this crime are the same as those found in charges under HS 11365.
4.2 Possession of a controlled substance – HS 11350
Per Health and Safety Code 11350, possession of a controlled substance is the crime where people unlawfully possess a controlled substance or have one in their control.
Note that the possession of methamphetamine is covered under this law and HS 11377.
Note also that the possession of drug paraphernalia is a separate offense charged under HS 11364.
As with charges under HS 11365, defendants can contest drug offenses under this law with the defense that law enforcement violated one of their constitutional rights.
4.3 Operating or maintaining a drug house – HS 11366
Under Health and Safety Code 11366, operating or maintaining a drug house is the crime where people operate or maintain any place for the purpose of unlawfully selling, giving away, or using controlled substances.
Unlike with the crime of being present for illegal drug use, a prosecutor can charge operating or maintaining a drug house as either a misdemeanor or a felony.
A felony conviction is punishable by a state prison term of up to three years.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law office at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
Our lawyers also represent clients throughout California State, including those in Los Angeles, Orange County, San Diego, and San Bernardino.
- As to “willfully,” see People v. Lara (1996) 44 Cal.App.4th 102.
- People v. Brim (1968) 257 Cal.App.2d 839.
- People v.Cressey (1970) 2 Cal.3d 836.
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2401 – Aiding and Abetting Unlawful Use of Controlled Substance.
- People v. Lee (1968) 260 Cal.App.2d 836.
- CALCRIM 2401. See also People v. Beeman (1984) 35Cal.3d 547.
- California Health & Safety Code 11365 HS.
- California Penal Code Section 19 PC.
- California Penal Code 1000 PC.