California Health and Safety Code 11550 HS makes it a crime for a person to be under the influence of a controlled substance or a narcotic drug not lawfully prescribed. A conviction is a misdemeanor that carries a penalty of up to one year in county jail.
Some examples of controlled substances covered by this statute include:
- heroin, and
The language of the code section reads that:
11550. (a) A person shall not use, or be under the influence of any controlled substance that 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. A person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not more than one year in a county jail. The court may also place a person convicted under this subdivision on probation for a period not to exceed five years.
(b) (1) A person who 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 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) who 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.
- Going to a concert while under the influence of cocaine
- Taking several oxycodone tablets and becoming weak, tired, and dizzy
- Hallucinating after snorting PCP
A defendant may assert a legal defense to fight an “under the influence” charge. Some common defenses are that:
- the drug was legally administered,
- the person was not under the influence, and/or
- the intoxication was involuntary.
The crime is punishable by imprisonment in county jail for up to one year.
A judge may grant misdemeanor (or summary probation) instead of jail time.
In this article, our California criminal defense attorneys will discuss:
- 1. What does it mean to be under the influence of a controlled substance?
- 2. Are there legal defenses to 11550 HS?
- 3. What are the penalties?
- 4. Are there immigration consequences?
- 5. Can a conviction be expunged?
- 6. Does a conviction affect a person’s gun rights?
- 7. Are there crimes related to health and safety code 11550?
1. What does it mean to be under the influence of a controlled substance?
Health and Safety Code 11550 HS is the California statute that makes it a crime for a person to be under the influence of a controlled substance or narcotic drug.1
A prosecutor must prove the following to convict a defendant of this crime:
- the defendant willfully used a controlled substance or narcotic drug, and/or
- the accused was willfully under the influence of this substance or drug.2
The specific controlled substances and narcotic drugs that fall under this statute are listed in:
- Health and Safety Code sections 11054-11058 HS, and
- Health and Safety Code 11019 HS.3
Some of the most common substances and narcotics subject to this law are:
Marijuana is specifically excluded from this code section. Offenses involving marijuana use and possession are regulated separately under California’s marijuana laws.
Questions arise under this statute on the meaning of:
- use, and
- under the influence.
Someone commits an act willfully, under this statute, when he or she does it:
- willingly, or
- on purpose.4
Example: John is not guilty under this law if someone “drugged” him or tricked him into ingesting a controlled substance.
For purposes of this law, the “use” of a drug must be current. This means it must have come “immediately prior to arrest.”5 What “immediately prior to arrest” means is determined on a case-by-case basis.
One court has stated that drug use within five days of an arrest may be enough to support a conviction.6
Other courts have stated that there cannot be current use if an accused started going into withdrawal prior to arrest.7 Withdrawal symptoms, therefore, indicate past drug use which is grounds for an acquittal of this criminal charge.
1.3. Under the influence
Someone is “under the inﬂuence of a controlled substance” if the substance has affected the person’s:
- nervous system,
- brain or mental condition, or
- muscles or physical condition.8
This standard is lower than how “under the influence” is treated in a DUI of drugs or a public intoxication case.
HS 11550 only requires that a person is under the influence in any detectable manner.9 Impairment or other misconduct is not necessary to prove this drug charge.
When law enforcement detains someone suspected of being under the influence, they will often call a drug recognition expert (DRE) to the scene. The DRE uses a 12-step process to evaluate whether the subject is, in fact, under the influence.
2. Are there legal defenses to 11550 HS?
There are defenses to charges under this law.
Three common defenses are:
- drug legally administered,
- not under the influence, and/or
- involuntary intoxication.
2.1. Drug legally administered
An accused is innocent under this code section if he was legally administered a controlled substance by a person licensed to do so – as in the course of a medical procedure.10
2.2. Not under the influence
An accused can always try to beat a charge by showing that he was not in fact under the influence. The strength of this defense increases if:
- the defendant was not in possession of drugs at the time of arrest, and
- no blood test was taken (or one was taken, and it found no drugs in the accused’s system).
2.3. Involuntary intoxication
Recall that a person must:
- willfully use a drug, or
- be willfully under the influence
for there to be an HS 11550 guilty charge. A defense then is for the defendant to show that he did not act willfully. An accused can show no willful conduct by proving that someone “drugged” him or tricked him into taking a drug.
Example: Kelly is not guilty of this crime if someone slipped ecstasy into her drink at a club.
3. What are the penalties?
A violation of this statute is a misdemeanor.
The crime is punishable by imprisonment in county jail for up to one year.
In some cases, the defendant may qualify for a drug diversion program, which consists of drug counseling and drug rehabilitation. These programs allow people who have committed non-violent drug offenses to serve their sentences in drug treatment programs in lieu of jail or prison.
Note that the L.A. County D.A.’s office generally does not prosecute HS 11550 cases.11
4. Are there immigration consequences?
A conviction under this law may have negative immigration consequences.
United States immigration law says that certain kinds of criminal convictions can lead to:
A category of “deportable” or “inadmissible” crimes includes certain drug offenses.12
This means, depending on the specific facts of a case, a conviction may lead to detrimental immigration effects.
5. Can a conviction be expunged?
A person convicted of this crime is entitled to an expungement provided that he:
- successfully completes probation, or
- completes a jail term (whichever is relevant).
If a party violates a probation term, he can still possibly get an offense expunged. This, though, is in the judge’s discretion.
Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.13
6. Does a conviction affect gun rights?
A conviction does not affect the convicted party’s gun rights.
Some California criminal convictions will result in the defendant losing his right to own a gun.
Some misdemeanors may even carry a 10-year firearm ban.
But an under the influence conviction will not produce these results.
7. Are there crimes related to health and safety code 11550?
There are three crimes related to being under the influence. These are:
- driving under the influence of drugs (DUID) – VC 23152f,
- driving while addicted to a drug – VC 23152c, and
- possession of a controlled substance – HS 11350.
7.1. Driving under the influence of drugs (DUID) – VC 23152f
A driver is DUI of drugs when he can no longer drive like a sober person under similar circumstances due to the use of drugs.
7.2. Driving while addicted to a drug – VC 23152c
A driver is considered “addicted to drugs” if he is physically or emotionally dependent upon them.
7.3. Possession of a controlled substance – HS 11350
Health and Safety Code 11350 HS is the California statute that makes it a crime for a person to:
- possess a controlled substance, and
- do so without a valid prescription.
A person is guilty of this crime for just having access to or control over certain drugs. Unlike HS 11550, there is no requirement that the defendant used a substance or was under the influence of one.
7.4. Drunk in Public – PC 647f
Under Penal Code 647f PC, public intoxication is defined as being intoxicated by alcohol or drugs to the point of being unable to care for oneself. This section only applies when the person is in public, whereas 11550 can apply even when a person is at home or in a private location.
Moreover, a 647f charge requires a much higher level of intoxication. The person must be intoxicated to the point of being a danger to himself or others. HS 11550, on the other hand, only applies to drugs, not to alcohol. And it only requires that the person is under the influence “in any detectable manner.”
For additional help…
For additional guidance or help, we invite you to contact us at Shouse Law Group. We have law offices in Los Angeles and throughout California.
For similar accusations in Nevada, please see our article on: “Under the Influence of a Controlled Substance’ in Nevada (NRS 453.411).”
- California Health and Safety Code 11550 HS.
- CALCRIM No. 2400 – Using or Being Under the Influence of Controlled Substance. Judicial Council of California Criminal Jury Instructions (2017 edition).
- California Health and Safety Code 11007.
- CALCRIM No. 2400 – Using or Being Under the Influence of Controlled Substance. See also People v. Little (2004) 115 Cal. App. 4th 766.
- Bosco v. Justice Court of Exeter-Farmersville Judicial Dist. (1978) 77 Cal.App.3d 179.
- People v. Jones (1987) 189 Cal.App.3d 398.
- See same.
- CALCRIM No. 2400 – Using or Being Under the Influence of Controlled Substance. See also People v. Canty (2004) 32 Cal. 4th 1266.
- CALJIC 16.060 — Under the influence. See also People v. Enriquez (1996) 42 Cal. App. 4th 661.
- 11550 HS.
- See same. LADA Special Directive 20-07.
- See INA 237 (a) (2) (A).
- California Penal Code 1203.4 PC.