Under California Health and Safety Code sections 11350-11352 HS, it is a crime to possess, sell, or transport controlled substances such as heroin. Simple heroin possession is generally a misdemeanor that can be dropped without jail time if you complete drug diversion. Trafficking heroin however is a felony carrying high prison terms.
|California heroin crime||Maximum jail/prison term (generally) |
|Simple possession – 11350 HS|| |
|Possession for sale – 11351 HS|| |
|Selling/transporting (“trafficking”) – 11352 HS|| |
|Being under the influence – 11550 HS|| |
|Being present while someone else uses – 11365 HS|| |
|Driving under the influence – 23152f VC|| |
In this article, our California criminal defense attorneys summarize the state heroin laws including common penalties and legal defenses:
- 1. Possessing heroin (11350 HS)
- 2. Possessing heroin for sale (11351 HS)
- 3. Transporting or selling heroin (11352 HS)
- 4. Being under the influence of heroin (11550 HS)
- 5. Driving under the influence of heroin (23152f VC)
- 6. Being present while someone else uses heroin (11365 HS)
- 7. How to fight criminal charges
- Additional resources
1. Possessing heroin (11350 HS)
Under Health and Safety Code 11350 HS, it is a California crime to possess controlled substances for personal use – called “simple possession.” The court will convict you of possessing heroin for personal use if the D.A. shows that either:
- you carried heroin on your person, and you knew it (“actual possession”); or
- you knowingly kept the heroin in your house, car, or other place you had control over (“constructive possession”); or
- you and at least one other party shared control of the heroin (“joint possession”).
Simple possession of heroin is usually a misdemeanor carrying up to 1 year in jail and/or $1,000 in fines. Most defendants can avoid any jail time and have the charge dismissed by completing one of California’s drug diversion programs:
Note that the D.A. will bring felony possession charges if you have prior convictions of certain serious crimes such as murder, gross vehicular manslaughter while intoxicated, or any sex offense that requires sex offender registration. Felony penalties for heroin possession are up to $10,000 in fines 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 heroin for sale (11351 HS)
Under Health and Safety Code 11351 HS, it is a California crime to possess controlled substances with the intent to sell them.2 Typical evidence that prosecutors rely on to prove you had intent to sell heroin is:
- you were found with more drugs than a person would normally consume, and the drugs were divided into containers or bags that contained precise amounts;
- you were found with a gun presumably for the purpose of self-defense during heated drug deals;
- you possessed large amounts of cash you presumably earned from prior drug sales; and/or
- you were seen in locations known for drug sales.
Possession of heroin for sale is a felony carrying two, three, or four years in California State Prison plus up to $20,000. Though the fine is upped to $50,000 if:
- you have a prior conviction of selling drugs or possessing drugs for sale, or
- the amount of heroin exceeded 14.25 grams.3
Note that if the amount of heroin exceeds one kilogram, your prison sentence will be increased by three to 25 years.4
3. Transporting or selling heroin (11352 HS)
Under Health and Safety Code 11352 HS, it is a California crime to transport or sell controlled substances (commonly called “trafficking”). Specifically, you can be convicted of trafficking heroin if the D.A. can show that you either:
- transported heroin,
- sold heroin,
- imported heroin into California,
- furnished heroin,
- administered heroin,
- gave away heroin, or
- offered to do any of the above.
A felony, trafficking heroin carries three, four, or five years in California State Prison plus up to $20,000. Though the sentence can increase to three, six, or nine years if the heroin was transported across more than two county lines, and you intended to sell the heroin at the destination. Plus the fine can increase to $50,000 if either:
- the amount of the heroin exceeds 14.25 grams, or
- you have a prior conviction of violating HS 11351 or HS 11352.5
Note that in cases involving more than one kilogram of heroin, the court can impose an extra three to 25 years in prison depending on the case.6
4. Being under the influence of heroin (11550 HS)
Health and Safety Code 11550 HS makes it a California crime to be under the influence of controlled substances, even if you are no longer in possession of any drugs.7 To prove that you are “under the influence” of heroin, the D.A has to show that:
- your physical or mental abilities are impaired “in any detectable manner;” and
- drugs are the reason for your impairment.8
It is a misdemeanor carrying one year in jail to be under the influence of heroin. In most cases however, you may avoid jail and a conviction by doing a diversion program instead.9
5. Driving under the influence of heroin (23152f VC)
Under Vehicle Code 23152(f) VC, it is a California crime to drive a motor vehicle in California while under the influence of controlled substances.10 For a court to convict you of driving while high on heroin, the D.A. has to prove that the heroin 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 nearly always a misdemeanor and is punished just like driving under the influence of alcohol (DUI). Penalties for a first-time conviction are up to six months in jail, up to $1,000 in fines, a driver’s license suspension, and DUI school.12
6. Being present while someone else uses heroin (11365 HS)
Under Health and Safety Code 11365 HS, it is a California crime to knowingly be present while someone else is using certain controlled substances such as heroin. To be convicted, the D.A. has to show that you did something to aid or abet that person’s drug use.
Violating HS 11365 is a misdemeanor carrying up to six months in jail and/or $1,000.13 Though as with HS 11350 and HS 11550 cases, you may be able to avoid jail and a conviction by completing diversion.
7. How to fight criminal charges
Here at Shouse Law Group, we have represented literally thousands of people charged with heroin crimes. In our experience, the following six defenses have proven very effective with prosecutors, judges, and juries in California:
1) The heroin was found through an unlawful search and seizure
Sometimes police make mistakes and violate your Fourth Amendment rights such as by going outside the bounds of a search warrant or by failing to get one at all. If the police found heroin through an illegal search, we can ask the judge to suppress it as evidence. This in turn could weaken the state’s case so much that they drop the heroin law charge.14
2) You were never planning on selling the heroin
If we can raise a reasonable doubt about your intent, the D.A. may be willing to drop a possession for sale charge down to simple possession. For example if they claim you had large amounts of cash on you, we can argue that it had nothing to do with drug deals and that you simply preferred to use cash instead of payment apps in your everyday life.
3) The police officers entrapped you
Whenever an undercover officer pressures you into buying or selling heroin when you were never predisposed to buy or sell heroin, then you are being entrapped and the case should therefore be dismissed. Police are allowed to trick you, but whenever they coerce you into doing something that you would never do but for their pressure, then it is the police – and not you – that broke heroin laws.
4) You had no idea the heroin was there
Courts cannot convict you of possessing heroin unless the D.A. can prove you knew it was there. If we can show that someone may have planted it on you or left it in your home without your knowledge, then criminal charges should not stand.
5) You are a victim of false accusations
The accuser may be trying to get you into trouble because they are angry with you and want revenge. In these cases, we would comb through their text messages, voicemails, etc. for evidence of their motivations to lie. We can then use this to impeach their credibility on the witness stand.
6) Heroin was not impairing you
Police sometimes arrest people for DUID or being under the influence of drugs when in fact they were having a medical episode – such as a seizure – that has nothing to do with drugs. We can use your medical records to show the D.A. that there was a legitimate medical excuse for your behaviors that the police mistook as drug intoxication. This may prompt them to drop the case altogether.
Valuable evidence in these cases involving heroin laws includes surveillance video and eyewitness accounts. We can also hire expert witnesses to comb over the state’s evidence and find instances of police misconduct that may weaken the prosecutors’ arguments.
For help or more information beyond California heroin 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.
- Heroin Use – WebMD article about the drug’s properties and treatment.
- Heroin – Drug Enforcement Administration fact-sheet on heroin.
- What is heroin? – Alcohol and Drug Foundation overview of heroin.
- 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 11352.5 HS.
- California Health and Safety Code 11370.4 HS.
- California Health and Safety Code 11352 HS. California Health and Safety Code 11352.5 HS.
- See note 4.
- 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.
- California Health and Safety Code 11365 HS.
- See also People v. Maxwell (Cal.App. 2020) 58 Cal. App. 5th 546.