California Health and Safety Code 11550 HS regulates drug use. Willfully using or being under the influence of a "controlled substance" or an illegally obtained narcotic drug subjects you to prosecution under this section.1
But don't despair, we're here to help. As former cops and prosecutors, we have the inside knowledge essential to investigating and defending your bogus drug charges.
Below, our California criminal defense attorneys2 address the following:
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
In order to prove that you are guilty of violating California Health and Safety Code 11550 HS, the prosecutor must prove that you willfully (1) used a "controlled substance" or "narcotic drug", and/or (2) were under the influence of a "controlled substance" or "narcotic drug".3
Let's take a closer look at some of these words and phrases to gain a better understanding of their legal definitions.
Controlled substances and narcotic drugs
"Controlled substances" and "narcotic drugs" are simply terms that are used to describe a class of specific drugs and drug-like substances. In general, these include
- hallucinogens, and
Specific drugs are listed in California Health and Safety Code sections 11054-11058 HS and in Health and Safety Code 11019 HS.4 Some of the most commonly used controlled substances and narcotics include (but are not limited to):
Marijuana is specifically excluded from this law. Offenses involving marijuana use and possession are regulated separately under California's marijuana laws.
But it's not just illegal drugs that subject you to prosecution for this offense. Illegally using or being under the influence of prescription drugs can also lead to a violation of Health and Safety Code 11550 HS California's "using and/or being under the influence of a controlled substance" law.
Some of the most common illegally used prescription drugs that can still subject you to prosecution for this crime include (but are not limited to):
- hydrocodone (generally referred to as Vicodin and commonly seen in connection with driving under the influence of Vicodin), and
- other opiates.
"Using" a controlled substance or narcotic drug
In order for prosecutors to convict you of "using" a drug, your "use" must be current, that is, "immediately prior to arrest".5 What "current" use or "immediately prior to arrest" means is a bit unclear and will be determined on a case-by-case basis. Use within five days of arrest may be enough to support an 11550 HS conviction.6 Use prior to that definitely will not.7
However, we do know that "current use" means that you haven't entered into withdrawal.8 If you are suffering from withdrawal then your body is adjusting to being without the drug. Withdrawal symptoms therefore indicate past drug use which entitles you to an acquittal of this charge (though you may still face prosecution for other drug charges).
"Under the influence" of a controlled substance or narcotic drug
Being under the influence of a drug under California Health and Safety Code 11550 HS is different from being under the influence of drugs with respect to a DUI case. In a Vehicle Code 23152(a) VC prosecution for driving under the influence of drugs, the driver is only guilty of driving "under the influence" if the drugs
"affect the driver's nervous system, brain, or muscles so as to impair (to an appreciable degree) his/her ability to drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of his/her faculties, using reasonable care, would drive a similar vehicle under like conditions".9
However, Health and Safety Code 11550 HS only requires that you are under the influence "in any detectable manner".10 Impairment or other misconduct isn't necessary to prove you guilty of this charge.
This means that if you are liable for driving under the influence of drugs, and the drug is classified as a "controlled substance or narcotic", you will likely also be liable for Health and Safety Code 11550 as well, because it involves a lesser degree of being "under the influence".
There are a variety of legal defenses that a California defense attorney could argue on your behalf, depending on the circumstances of your arrest. Some of the most common include (but are not limited to):
You weren't under the influence
Sometimes illness, fatigue, or other physical symptoms can mimic signs of drug impairment. If the officers don't find you in possession of any drugs (which is a crime in and of itself) and don't take a blood test to confirm that you have drugs in your system, then the evidence against you is probably pretty weak.
When this is the case, your criminal defense attorney could argue that you weren't under the influence, but were simply suffering from a physiological condition that was unrelated to drug use.
You have a valid, legal prescription for the drug
Whether the drug was "legally obtained" is critical. If you possess a legal, valid prescription from someone licensed to practice medicine in California, you will be exempt from prosecution under this law.11 This is the case as long as you used the prescribed drug as indicated (that is, you only took the suggested amount at the suggested times).
Producing a counterfeit, forged, or otherwise illegally obtained prescription will not only subject you to prosecution for this charge, but will likely result in prosecution for additional charges as well (for example, prescription fraud).
Similarly, having a variety of prescriptions for the same drug could subject you to prosecution under California doctor shopping law.
Health and Safety Code 11550 HS California's "using and/or being under the influence of drugs" law requires a "voluntary" act of using the drug. If you were surreptitiously "drugged" by another.and didn't willfully ingest a controlled substance or narcotic drug.you would not be guilty of this offense.
Health and Safety Code 11550 HS California's "using and/or being under the influence of a controlled substance" law is a misdemeanor that carries severe consequences. If you are convicted of this charge, you face:
- up to five years of informal probation,
- up to one year in a county jail,
- drug counseling, and
- possible community service or labor.12
If you suffer a third conviction of this section within seven years of your first conviction, and you have refused court-appointed drug treatment, you will be sentenced to a minimum of 180 days in the county jail.13
Being under the influence while possessing a firearm
Another offense under California's Health and Safety Code section 11550 is being under the influence of cocaine, cocaine base, heroin, methamphetamines "meth", or PCP while possessing a loaded, operable gun.14
This hybrid drug offense / California gun law is a "wobbler" which means that it may be charged as either a misdemeanor or a felony. If convicted of this offense, you face imprisonment in a county jail or in the California State Prison. Each subsequent offense will automatically be charged as a felony, carrying a state prison sentence of two to four years.15
However, if the court finds that you are addicted to any narcotic drug -- and you possess or acquire a gun (whether loaded or not) -- even your first offense will be an automatic felony under Penal Code 29800 PC California's "felon with a firearm" law.16
And once you are convicted of a felony offense, Penal Code 29800 PC California's "felon with a firearm" law also imposes a lifetime ban on owning, possessing, or acquiring firearms.17 To learn how to restore your California gun rights, please read our article on Restoring Your California Gun Rights.
Drug rehabilitation is offered in lieu of jail to those who have committed non-violent, drug possession offenses. This type of alternative sentence is available under California Proposition 36 and under Penal Code 1000 PC California's drug diversion or "deferred entry of judgment" program.18 However.
If you are simultaneously convicted of California Health and Safety Code 11550 and
- a separate misdemeanor offense that doesn't involve simple possession or drug use (which includes driving under the influence),19 or
- a felony,
you will be disqualified from participating in this program.20 Similarly, if you are convicted for violating Health and Safety Code 11351 HS California's "drug possession for sale" law or Health and Safety Code 11352 HS California's transporting or selling a controlled substance" law, you will not be entitled to participate in a diversion program.
This is because diversion and rehab programs are reserved only for those persons who need help with their personal addiction issues. Selling drugs is thought to be more criminal in nature. As a result, the state punishes such behavior instead of offering rehabilitation services.
It is also important to note that there are additional conditions that may also exclude you from diversion. If you are excluded from diversion, you have the right to appeal that decision.21
If you do qualify for a drug diversion program, you will be subject to drug testing as a condition of probation.22
Depending on the circumstances surrounding your California Health and Safety Code 11550 HS arrest, you may be charged with additional offenses as well. Some of the most common include
- Vehicle Code 23152(f) California's law against driving under the influence of drugs (or DUID),
- Vehicle Code 23152(c) driving while addicted to a drug, and
- Health and Safety Code 11350 HS California's law against possessing a controlled substance.
When possession and use charges arise out of the same incident, it may be unlawful for the prosecutor to charge and/or attempt to sentence you for both.
As Rancho Cucamonga criminal defense attorney Michael Scafiddi explains,23 "An attorney who specializes in defending California drug crimes will know when an overzealous prosecutor or ill-informed judge tries to sentence you illegally for more than one crime that involves the same underlying conduct.and will know how to prevent this type of injustice."
Also, if the evidence that you were under the influence is weak but there is evidence that you were present while someone else used drugs, you may be charged under Health & Safety Code 11365 HS, California's law against being present for controlled substance use. However, you are only guilty of this crime if you actively aided or abetted someone else's drug use.
It is also important to know that being under the influence of nitrous oxide (Penal Code 381b PC) is a crime in California, although it is punished under a separate statute from being under the influence of controlled substances generally. This misdemeanor law only applies if you did not receive nitrous oxide from a licensed medical professional.
Call us for help.
If you or loved one is charged with Health and Safety Code 11550 HS under the influence of a controlled substance and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada drug crime defense attorneys are available to answer any questions relating to Nevada's "under the influence of drugs" laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.24
1Health and Safety Code 11550 HS California's "using and/or being under the influence" law. ("(a) No person shall use, or be under the influence of 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 (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.")
2Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
3California Jury Instructions, Criminal CALJIC 16.060 California's "using and/or being under the influence" law.
4California Health and Safety Code 11007 HS -- Controlled substance.
See also California Health and Safety Code 11019 HS -- Narcotic drugs.
5Bosco v. Justice Court of Exeter-Farmersville Judicial Dist. (1978) 77 Cal.App.3d 179
6People v. Jones (1987) 189 Cal.App.3d 398, 405.
7People v. Velasquez (1976) 54 Cal.App.3d 695, 700.
8See People v. Jones, at 405, endnote 6, above.
9CALJIC 16.830 -- Misdemeanor Driving Under the Influence.
10CALJIC 16.060 -- Under the influence.
See also People v. Enriquez (1996) 42 Cal.App.4th 661, 665.
11Health and Safety Code 11550 HS California's "using and/or being under the influence" law.
13See same, subsection (b)(1).
14See same, subsection (e).
15See same, subsection (f)
16Penal Code 29800 PC California's felon with a firearm law.
18Health and Safety Code 11550 HS, subsection (c).
20See Penal Codes 1210.1 (also known as Proposition 36) and Penal Code 1000 PC.
21Penal Code 1000 PC -- Drug Diversion.
22See same, subsection (e).
23Rancho Cucamonga criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients accused of violating California's drug laws in San Bernardino, Riverside, Banning, Fontana, Joshua Tree, Barstow and Victorville.
24Please feel free to contact our Nevada drug crime defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's "under the influence of drugs" laws. Their Nevada law offices are located in Reno and Las Vegas.