Under this law, it is illegal to be under the influence of a controlled substance. This offense is generally charged as a misdemeanor in normal circumstances and, as such, the maximum jail penalty is 1 year in county jail.
Being under the influence of a controlled substance means that someone has consumed an illegal drug and the drug has induced a narcotic effect on the user affecting the functioning of the brain, nervous system, or other normal functions of the body. A drug defense attorney is in the best position to analyze and defend the numerous issues involved in establishing whether one is "under the Influence". This change in the body may also be found if it creates a noticeable defect in mental capacity.
Required Elements of the Crime:
To find a defendant guilty, the prosecutors must meet their burden of proving beyond a reasonable doubt either:
1. Willful and illegal use of a controlled substance by the defendant shortly before the arrest (The term “willful” means that the person did the act on purpose, i.e. had the intent to “get high.” Not required is intended to violate the law, to injure another, or to acquire any advantage); or,
2. The defendant was illegally under the influence of a controlled substance as a result of his or her will to do so at the time of the arrest.
Illegally using or being under the influence of prescription drugs can also lead to a violation of Health and Safety Code 11550. Some of the most common illegally used prescription drugs that can subject you to prosecution for this crime include, though not limited to, codeine, morphine, hydrocodone (Vicodin), heroin and other opiates.
Another offense under California's Health and Safety Code11550 is being under the influence of cocaine, cocaine base, heroin, methamphetamine (meth), or PCP while possessing a loaded, operable gun. In these circumstances, someone can be charged with either a misdemeanor or a felony.
This particular statute does not involve being under the influence of marijuana because there are a number of laws that specifically deal with that issue. Also, the issue of "being under the influence" is different than being under the influence in other cases such as a DUI. Under the influence in H&S 11550 simply means, that you are someway, under the influence of the drug regardless of how minimum the "influence" maybe. The use of drugs 24-48 hours prior to an arrest may very well under certain circumstances be sufficient if the user is in any way influenced by the drug.
Defenses to H&S 11550:
1. Valid Prescription- A defendant will not be guilty under H&S 11550 if they are in lawful possession of a prescription from a health care professional authorized to prescribe such a drug. Authorized individuals include a physician, dentist, podiatrist, or even a veterinarian. A naturopathic doctor is also allowed to provide a valid prescription for the purposes of this defense. All these professionals must be licensed in California for the defense to be valid. It should be noted that, regardless of whether the drugs were validly prescribed to a defendant, no one may drive a vehicle under the influence of a drug, whether legal or illegal.
2. Unknowing use of a Controlled Substance by a Defendant- If the defendant did not consume a drug by an act of free wills, such as having been drugged by another without their knowledge, willfulness cannot be proven. We are all reading or hearing stories about people being drugged at bars, parties, etc. If an individual is confronted by the police and can show that they did not take a drug voluntarily a conviction may be avoided. Drug defense lawyers in our Santa Rosa, Napa, San Rafael, Lakeport, Ukiah and Humboldt counties can be helpful in this regard.
3. Forced use or Unknowingly under the Influence- If an individual is confronted by the police and can establish that they did not take a drug voluntarily than a conviction will be avoided.
4. Evidence Acquired by Law Enforcement- Was as a result of unconstitutional or illegal action.
5. Lack of Physical Evidence- Generally physical evidence is required for the District Attorney to convict somebody of an H&S 11550 violation. This would include some type of a drug test or the presence of drugs that can confirm that the defendant was using or under the influence of a drug.
Alternatives to Criminal Prosecution:
Some people convicted of H&S 11550, will be eligible for an alternative treatment known as Penal Code 1000 Drug Diversion, Mental Health Diversion, and Military Diversion. Drug attorneys from Santa Rosa, Napa, San Rafael, Lakeport, Ukiah, and Eureka almost always suggest diversion programs instead of criminal prosecutions, if available. Upon successful completion of a diversion program, the criminal arrest record and charges can be sealed or, in essence, removed from your criminal history and the only folks that can see this information of the original arrest is law enforcement. As drug defense attorneys will tell you this can be extremely helpful for someone during the course of their life when applying for employment, housing, etc.
Further, even if convicted, after completing the period of probation that will be ordered by the court as part of any sentencing in a case, our drug defense lawyers can file an Expungement/ Petition to Dismiss the conviction, which can add a very favorable entry to your criminal record history confirming that these charged have been dismissed by the court.
Health and Safety Code 11550 California's "using and/or being under the influence of a controlled substance" law is a misdemeanor that carries severe consequences. Possible sentences include:
1. Anywhere from 1 to 365 days in the local jail; pursuant to California's Prop 36 it is very possible to have the court eliminate any jail time and, instead have an individual convicted of H&S 11550 participate in drug counseling as opposed to going to jail.
2. As an alternative to the county jail, possible community service or labor.
3. A maximum of five years of informal probation. This means that formal probation cannot be ordered which generally includes having a probation officer, writing monthly reports, having occasional visits from your probation officer, etc. Informal probation is basically a probation "on the books" and you are simply required to comply with the conditions of probation. If you violate one of these conditions, the District Attorney will file a violation of probation case against you. "It is very common for the length of informal probation to be significantly less than 5 years.
4. Court-ordered drug counseling which is generally provided by the county.
If the defendant obtains a third conviction of this section within seven years of the first conviction and has refused court-appointed drug treatment, the defendant will be sentenced to a minimum of 180 days in the county jail.
Being under the influence while possessing a firearm is a 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, there is the possibility of 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.
If the court finds that the defendant is addicted to any narcotic drug and possesses or acquires a gun (whether loaded or not), even a first offense will be an automatic felony under Penal Code 29800 PC California's "felon with a firearm" law.
Alternatives to Jail:
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.
Drug Defense Attorneys:
Remember, Ronald Dinan and Associates, is a firm of experienced and aggressive criminal drug lawyers, who can help in achieving the best outcome in your case. Many times criminal case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charges, diversion programs, probation, reduced fines with installment payments, alternatives to jail, etc.
To get immediate help with your criminal matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.
Santa Rosa – 707-571-5550 Lakeport – 707-262-0503
Napa – 707-252-0102 Ukiah – 707-462-5950
Marin – 415-491-0223 Eureka – 707-445-1348
The Law Itself: Health and Safety Code Section 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 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 is 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.
(2) For the purpose of this section, a drug rehabilitation program is not reasonably available unless the person is not required to pay more than the court determines that he or she is reasonably able to pay in order to participate in the program.
(c) (1) The court may, when it would be in the interest of justice, permit a person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program.
(2) In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds.
(d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against a person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and a defendant shall not be denied probation because of his or her inability to pay the fine permitted under this subdivision.
(e) (1) Notwithstanding subdivisions (a) and (b) or any other law, a person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison.
(2) As used in this subdivision “immediate personal possession” includes, but is not limited to, the interior passenger compartment of a motor vehicle.
(f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years.
(g) This section does not prevent deferred entry of judgment or a defendant's participation in a pre-guilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a pre-guilty plea drug court program.
(Amended by Stats. 2014, Ch. 819, Sec. 1. (AB 2492) Effective January 1, 2015.)