California Health and Safety Code 11550 HS makes it a crime to be under the influence of a controlled substance that is not lawfully prescribed. The offense is a misdemeanor punishable by 180 days to one year in county jail. But it may be possible to get the charge dismissed through a diversion program through California Penal Code 1000 or Proposition 36.
Some examples of controlled substances covered by this statute include:
- cocaine,
- heroin, and
- oxycodone (not lawfully prescribed).
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.
Examples
- Going to a concert while under the influence of the opiate Vicodin
- Taking several stolen prescription drugs and becoming weak, tired, and dizzy
- Hallucinating after snorting PCP
Defenses
A defendant may assert a legal defense to fight an “under the influence” charge. Some common defenses are that:
- the drug was legally administered and prescribed by a licensed health care professional (such as a physician, naturopathic doctor, dentist, podiatrist, or veterinarian);
- the person was not under the influence as proven by drug tests; and/or
- the intoxication was involuntary (“involuntary intoxication”), such as being drugged at a party without the defendant’s knowledge or will.
Penalties
A violation of this statute is a misdemeanor offense. This contrasts with a felony or an infraction.
The crime is punishable by imprisonment in county jail for 180 days to 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. How does the state prove I was under the influence?
- 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?
Health and Safety Code 11550 HS makes it a drug crime for a person to be under the influence of a controlled substance or narcotic drug.
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 criminal complaint must specify which drugs the defendant allegedly was under the influence of. 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:
- methamphetamines,
- heroin,
- PCP,
- codeine, and
- hydrocodone.
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:
- willfully,
- use, and
- under the influence.
1.1. Willfully
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.
1.2. Use
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 48 hours or even 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 of a narcotic effect.
There are legal defenses to this charge.
2. How does the state prove I was under the influence?
A prosecutor can draw upon several types of evidence to help prove that a defendant was guilty of being under the influence of a controlled substance. The three main types include:
- testimony of the arresting officer(s),
- chemical test results, and
- testimony from a Drug Recognition Expert (“DRE”) officer.
2.1. Testimony of the arresting officer
Law enforcement officers are trained to detect certain signs in suspects that suggest drug use/drug intoxication. For example, any of the following may suggest a party is under the influence of drugs:
- runny nose,
- tremors or seizures,
- chemical odor on a suspect’s breath or clothes,
- loss of physical coordination,
- extreme lethargy,
- bloodshot or watery eyes, and
- pinpoint pupils.
If an arresting officer observed any of these objective symptoms during the arrest, a prosecutor can have the officer testify in court as to what he/she observed.
2.2. Chemical test results
If a person is arrested for an HS 11550 violation, police will ask the party to submit to a chemical test.
Police officers request a blood test because a breath test cannot detect the presence of drugs in a person’s system.
If a test comes back positive for a particular drug or drugs, the prosecutor can introduce the test results into evidence to suggest a defendant was under the influence.
Chemical tests can detect the presence of several different drugs, including:
- methamphetamine,
- opioids, and
- cocaine.
Ultimately the D.A. has the burden to prove guilt beyond a reasonable doubt.
2.3. Testimony from a Drug Recognition Expert
A DRE is a member of a law enforcement agency that has received specialized training in recognizing the signs and symptoms of drug intoxication.
Once a non-DRE officer stops a person for being under the influence of a controlled substance, that person may call and ask a DRE officer to help in the investigation process. A DRE officer will then conduct a specialized 12 step DRE Drug Impairment Protocol to measure if a suspect is under the influence.
If the protocol indicates the suspect was under the influence, a prosecutor may call the DRE officer to testify in court as to the protocol’s findings.
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 non-citizen being deported, and
- a non-citizen being marked “inadmissible.”
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.
- drunk in public – PC 647f
7.1. Driving under the influence of drugs (DUID) – VC 23152f
California Vehicle Code 23152f VC makes driving under the influence of drugs (DUID) a crime.
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.
DUID suspects are required to submit to a blood drug test. And defendants convicted of a first offense face laxer penalties than those with prior convictions.
7.2. Driving while addicted to a drug – VC 23152c
Under Vehicle Code 23152c VC, driving while addicted to prescription drugs or illegal drugs is considered a form of California DUI.
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 possession of drugs 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.
See our related article on drug paraphernalia possession (HS 11364).
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.”
Convicted defendants who cannot pay the fine may be able to do community service instead.
For additional help…
For additional guidance or help, our criminal defense lawyers invite you to contact us at Shouse Law Group. We have California law offices in Los Angeles and throughout the state.
For similar accusations in Nevada, please see our article on: “Under the Influence of a Controlled Substance’ in Nevada (NRS 453.411).”
Legal References:
- California Health and Safety Code 11550 HS. See also People v. Mower (2002) 28 Cal.4th 457.
- 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. Sallas v. Municipal Court (1978) 86 Cal.App.3d 737.
- CALCRIM No. 2400 – Using or Being Under the Influence of Controlled Substance. See also People v. Little (2004) 115 Cal. App. 4th 766 (willfully is “simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage”). People v. Lara (1996) 44 Cal.App.4th 102.
- Bosco v. Justice Court of Exeter-Farmersville Judicial Dist. (1978) 77 Cal.App.3d 179. People v. Gutierrez (1977) 72 Cal.App.3d 397. People v. Velasquez (1976) 54 Cal.App.3d 695.
- People v. Jones (1987) 189 Cal.App.3d 398 (“Moreover, even if the evidence were construed to show use within forty-eight hours before appellant’s arrest, such usage two days before arrest could clearly qualify for a finding of current use under the previously-cited statement in Velasquez to the effect that use less distant than five days prior to arrest might support a section 11550 conviction.”).
- See same.
- CALCRIM No. 2400 – Using or Being Under the Influence of Controlled Substance. See also People v. Canty (2004) 32 Cal. 4th 1266. People v. Culberson (1956) 140 Cal.App.2d Supp. 959. 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.