Under the Influence

Health & Safety Code (HSC) Section 11550

Under HSC 11550, two closely related crimes are dealt with. First, the personal use of any "controlled substance" is prohibited. Second, being under the influence of a controlled substance (the natural result of the first crime, in sufficient quantities) is also prohibited.

Penalties for both use of illegal drugs and being under their influence are also assigned in HSC 11550.

It is important to realize that drug possession (HSC 11350) is a distinct crime but one almost necessarily also committed in order to violate HSC 11550. Some prosecutors may try to charge you with both drug use and drug possession for the very same underlying incident. But a good defense lawyer can generally prevent them from "getting away with" that.

What is a controlled substance?

The first element of the crime of drug use/influence that a prosecutor must prove is the identity of the substance in question as a controlled substance.

Any drug listed in the US Controlled Substances Act is a "controlled substance" in California. These drugs may be illegal narcotics, illegally used prescription drugs, or other "substances" that aren't even normally thought of as "drugs" as such.

Cocaine, heroin, meth, peyote, PCP, opiates, hallucinogens, and prescription drugs like codeine, morphine, or Vicodin are common examples of controlled substances. But the full list is extremely long.

However, use of or being under the influence of marijuana is not handled under HSC 11550, but is covered under separate statutes. Punishments for marijuana related offenses tends to generally be less severe than for most other drugs, but unless you have a valid prescription and only possess/use marijuana within specific quantity limits, you can still be prosecuted. And driving a motor vehicle while under the influence of marijuana or simply being under its influence is still punishable if it violates any of the restrictions California places on legalized marijuana use.

Arrested for "drug use."

If you are charged specifically with "use of" an illegal drug, California law requires that use be relatively "current." Otherwise, you will simply be acquitted of the charge, even if you still face other drug charges like simple possession.

"Current use" is a somewhat vague term legally, but anything beyond 5 days before your arrest will certainly not be upheld. But remember that is based on the last time you used the drug before the arrest, so a binge that started 7 days prior to arrest but ended 4 days before is still chargeable.

Plus, realize that if it can be shown you had withdrawal symptoms from lack of use of the drug, then that indicates "past use" of a drug and prevents the prosecution from getting a conviction for "current" drug use under HSC 11550.

Arrested for being "under the influence."

Most people are more familiar with DUI (driving under the influence of alcohol or drugs.) In a California DUI, being under the influence is determined either by a BAC of .08% or higher or by demonstrating that the drugs/alcohol have impaired your driving ability.

But in a HSC 11550 "under the influence" charge, you are guilty of "UI" if the influence of the drug on you is at all detectable in any way. You don't have to show "impairment" or some kind of "misconduct" in order to be convicted.

Possible Penalties for Drug Use/Influence

Under California Health & Safety Code 11550, using or being under the influence of a controlled substance is a misdemeanor crime.

The penalties for this misdemeanor, however, are relatively severe, if less severe than for most other drug crimes. They include:

• Up to 12 months of jail time.
• Up to 5 years of probation.
• Community service.

And if you commit a 3rd time drug use/influence offense within 7 years of the first one, AND you refused a drug treatment program appointed by the court, you will be facing a minimum of 180 days behind bars.

Drug use plus possession of a firearm.

With certain specific drugs that can have extremely mind-altering effects, including cocaine, heroin, meth, and PCP, you will get a sentencing enhancement IF you ALSO possessed a loaded, functional firearm at the time.

Drug use/influence with a firearm can be charged as either misdemeanor or felony depending on the details of each case. But any repeat offense of this crime is an automatic felony, which can get you 2 to 4 years in state prison.

Also, a first offense of drug use with a firearm is a felony automatically too, IF you are shown to have been addicted to the drugs in question at the time - and in this instance, it won't matter whether or not the gun you possessed or simply acquired was loaded.

Finally, conviction for a felony offense of any kind will cancel your gun ownership rights in California for life, unless you go through a legal process to try to restore those rights.

Common Defense Strategies for HSC 11550 Charges

At Leah Legal, we have deep experience in defending against the charge of drug use or being under the influence of drugs. We understand the relevant statutes down to the legal minutia, are fully familiar with local L.A. courtroom procedures, and know what kind of "courtroom" and "pretrial" dynamics to expect.

We can build you a solid defense regardless of the exact details of your situation. Whether it's a first time charge or an alleged repeat offense and whether or not there are any aggravating factors, we know how to challenge the assumptions of the prosecution and win the best possible outcome for each and every one of our clients.

Here are a few of the most common basic defense strategies we often employ against HSC 11550 charges:

1. Not Under the Influence

There are times when an arresting officer wrongly assumes someone is under the influence of drugs. You may have been very tired, sick, or had other physical symptoms or personal habits that the officer mistook for signs of drug impairment. Police are frequently exposed to people under the influence, and this can make them jump to conclusions and mistakenly identify an innocent person as being in that category.

If no drugs were found on your person or in your car or living quarters, and if there isn't even a blood test showing you had an illegal drug in your system, the prosecution's evidence of being "UI" is likely rather weak and can probably be defeated.

2. Valid Prescription

If the drug in question in your case was a prescription drug, it may be you obtained the drug 100% legally through a valid prescription from a licensed doctor. If you used the prescription drug only as prescribed and did not illegally seek multiple prescriptions from different doctors ("doctor shopping") in order to get additional quantities of the drug, you are innocent.

A "fake" or illegally obtained prescription, however, not only leaves one exposed to the drug use charge but potentially adds a prescription fraud charge.

3. Involuntary Intoxication

In order to be guilty of drug use or being under the influence of drugs according to HSC 11550, the use of the drugs must have been voluntary.

If someone else drugged you against your will and/or without your knowledge, you cannot be guilty of HSC 11550.

California Drug Diversion Programs

In California, those convicted of drug use or being under the influence of drugs (or simple possession of drugs) usually qualify for a "drug diversion" program under Prop 36 or Penal Code Section 1000.

These programs are for non-violent offenders. They substitute drug rehabilitation, probation, and fulfillment of other requirements for jail time and allow for deferred entry of judgment, which lets you prevent a criminal conviction from actually appearing on your record.

With deferred entry of judgment, you plead "guilty" in exchange for being approved for the drug diversion program. But your case is left open, while you complete the program. If you successfully complete it, then your case will be dismissed instead of a technical "conviction" being rendered. This keeps your record clean.

BUT, if you are convicted of a felony, a DUI, or a no-qualifying misdemeanor crime along with your HSC 11550 charge, then you won't qualify for drug diversion.

And other drug crimes like possession for sale, sale/transport of drugs, or anything above simple possession/drug use, can't qualify for drug diversion. The purpose of diversion programs is to help people addicted to drugs recover not to let those selling drugs or committing violent crimes get a lighter sentence.

Also, you must submit to drug testing in order to qualify for drug diversion.

At Leah Legal, we frequently help our clients to qualify for a drug diversion program to keep their records clean, get them a lighter sentence, and help them recover from drug addiction. With HSC 11550 cases, it is extremely common for us to get you into such a program.

Related Offenses

Besides HSC 11550 itself, there are other crimes frequently charged along with it that you should be aware of if facing a drug use/influence charge. These include:

1. Driving under the influence of an intoxicating drug, (Vehicle Code Section 23152f). This requires you were operating a motor vehicle at the time and that the drug impaired your driving ability and/or that you had a BAC of .08 or higher.
2. Driving while addicted to a drug, (VC 23152c). This is punished the same as DUID and is often charged if DUID itself can't be proved by prosecutors.
3. Possession of a controlled substance, (HSC 11350). You can't have used a controlled substance without first possessing it, so some prosecutors try to charge you with both simple possession and drug use for the same act. We know how to prevent this kind of unfair tactic from succeeding, however.
4. Being present while another uses an illegal drug, (HSC 11365). This only can be charged if you aided and abetted such drug use and is only usually charged if evidence is weak you actually used drugs yourself.
5. Under the influence of nitrous oxide (laughing gas), (Penal Code Section 381b). If not administered by a licensed doctor or dentist, it is illegal to use nitrous oxide.

Contact Us Today for Help!

At Leah Legal, we have extensive experience in defending clients in the L.A. Area and beyond against the charge of drug use or being under the influence of an illegal drug. We know how to analyze each case, investigate thoroughly, find weaknesses in the prosecution's argument or evidence, and win for our clients.

Contact us anytime 24/7/365 at 818-484-1100 for a free, no-obligation consultation and immediate attention to your case!