California Health & Safety Code 11366 HS makes it a crime to operate or maintain any place for the purpose of unlawfully selling or giving away illegal controlled substances.1 This crime is often referred to informally as “operating a drug house.”
Operating a drug house is frequently charged along with related California drug crimes such as:
- Health and Safety Code 11352 -- sale or transportation of a controlled substance, or
- Health and Safety Code 11351 --possession for sale of controlled substances.
However, as we discuss below, HS 11366 opening or maintaining a drug house has certain special features that distinguish it from both of those crimes.
What is HS 11366 opening or maintaining a drug house?
The legal definition of operating a drug house under Health & Safety Code 11366 consists of the following “elements of the crime”:
- You opened or maintained a place; and
- You did so with the intent to sell, give away or allow other people to use a controlled substance or narcotic drug on a continuous or repeated basis at that place.2
What is a "place" under HS 11366?
A “place” usually means a house or apartment—but it doesn't have to. For example, a hotel or motel room can count as a “place” for purposes of 11366 HS.3
It is important to note that you are only guilty under HS 11366 if you opened or maintained a drug house in order to provide other people with the opportunity to use controlled substances.4
Maintaining a place merely for your own drug use will not make you guilty of this offense—although it could support a conviction for simple possession of a controlled substance.
How do I defend HS 11366 charges?
Common California HS 11366 defenses
The best legal defense to HS 11366 will depend on the facts of your case. But common legal defenses in California to maintaining a drug house include:
- The drugs found in your house were for your personal use,
- You didn't know people were doing drugs at your house,
- Other people only used drugs at your house once,
- The drugs were found during an illegal search and seizure,
- There was police misconduct.
As Long Beach drug crimes defense attorney Neil Shouse11 explains:
“One of the most successful legal defenses to Health & Safety Code 11366 charges is that there is no compelling evidence that defendant's behavior met the legal definition of the crime. Under HS 11366 the prosecutor must prove that:
- the defendant was not the only one using drugs in the drug house, and
- that the distribution of drugs at the drug house was something that happened repeatedly.
Challenging either of these points successfully is enough to defeat the charges.”
Illegal searches under HS 11366
Another common legal defense to HS 11366 charges is that police obtained evidence in violation of California's search and seizure laws, either because:
- they entered the alleged drug house without a valid California search warrant, or
- they searched outside the area covered by a warrant.
Example: David's landlord suspects that illegal activity is going on in David's apartment and calls the police. David consents to a police search of his apartment.
The police find substantial amounts of cocaine and methamphetamine in David's apartment, along with drug paraphernalia and tens of thousands of dollars in cash.
David claims that he has been using drugs heavily due to personal troubles and that all the drugs are for his own use. David also testifies that the cash came from the operation of a restaurant he owns. There is no additional evidence that David was selling drugs or sharing them with anyone else.
Thus, because there is no evidence that David was supplying drugs to anyone else, he cannot be guilty of operating a place for controlled substance distribution under Health & Safety Code 11366.5
HS 11366 requires continuous or repeated violations
Remember -- you are only guilty of opening or maintaining a drug house under HS 11366 if you sold or gave away controlled substances there on a continuous or repeated basis. If it was something that happened only once, you haven't violated Health and Safety Code 11366.6
Example: Gena no longer uses drugs, but she used to be a peyote user and still has many friends who use peyote.
Gena receives an unexpected inheritance when her great-aunt dies. She uses some of that money to purchase a large amount of peyote and invites five friends over to ingest the peyote in her apartment.
Gena is not guilty of opening a drug house under Health & Safety Code 11366 because her peyote party is a one-time event—she has not done this before and does not intend to do it again. (However, she may be charged with Health & Safety Code 11365 HS being present for unlawful drug use.)
Penalties & punishment for HS 11366 operating a drug house
Under HS 11366, opening or maintaining a place for the sale or distribution of controlled substances is what is known as a “wobbler” in California law.7
Misdemeanor penalties under HS 11366
As a misdemeanor, the consequences of HS 11366 operating a drug house can include:
- up to one (1) year in county jail, and/or
- a fine of up to one thousand dollars ($1,000).8
Consequences of HS 11366 felony charges
The penalties for felony opening or maintaining a drug house are:
- sixteen (16) months, two (2) years or three (3) years in California state prison, and/or
- a fine of up to ten thousand dollars ($10,000).9
HS 11366 property forfeiture
The real property where a drug house is alleged to have been maintained may be confiscated under California's asset forfeiture laws—unless:
- the property is a family residence or used for another lawful purpose, or
- is owned by two (2) or more people, one of whom did not have knowledge of the illegal activity.10
Call us for help…
For questions about the crime of Health & Safety Code 11366 HS opening or maintaining a drug house, 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 11366 HS – Opening or maintenance of unlawful places [drug houses]; punishment. (“Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (13), (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b), (c), paragraph (1) or (2) of subdivision (d), or paragraph (3) of subdivision (e) of Section 11055, or (2) which is a narcotic drug classified in Schedule III, IV, or V, shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison.”)
2 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2440.
3 See People v. Shoals (1992) 8 Cal.App.4th 475.
4 People v. Franco (2009) 180 Cal.App.4th 713, 724-25.
5 Based on the facts of the same.
6 People v. Horn (1960) 187 Cal.App.2d 68, 72.
7 Health & Safety Code 11366 HS – Opening or maintenance of unlawful places [drug houses]; punishment, endnote 1 above.
See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
See also Penal Code 18 PC – Punishment for felony not otherwise prescribed.
10 Health & Safety Code 11470 HS – Property subject to forfeiture; vesting of personal property with state.
11 Our Long Beach drug crimes defense attorneys have conducted dozens of jury trials and juvenile adjudication hearings and has experience with drug charges ranging from simple possession through maintaining a drug house to high-level trafficking charges.