California Health and Safety 11550(a)
If you have been charged with being under the influence of a controlled substance, a violation of California Health and Safety Code §11550(a), it is important for you to understand the elements of this crime. An experienced attorney at The Law Offices of Daniel E. Kann can explain the law to you and successfully defend your case. The following is a brief description of the crime. Please contact Daniel E. Kann to discuss the details of your case.
In order to show that you violated California Health and Safety Code §11550, the prosecutor must first prove that you "willfully" used a "controlled substance," and second, that you were under the "influence" of the "controlled substance". Each of these quoted legal terms is further described below.
What is a controlled substance?
The essential element of this crime is the usage of a controlled substance. So what is a controlled substance? Section 11150(a) defines a "controlled substance" as a narcotic drug1 and substance defined under California Health and Safety Code §11054 &110552 which in general include the following drugs:
- Cocaine, and
A "controlled substance" can also be a prescription drug such as codeine, morphine, or hydrocodone if they are obtained without a prescription or not used in accordance with that prescription.
What is under the influence of a controlled substance?
The prosecutor only has to show that you used the drug and are under the influence of the drug in any detectable manner.3 The prosecution does not need to show that you were impaired or that you engaged in any other misconduct.
To be under the influence of a controlled substance, the prosecutor must further show that your use of the drug was current i.e. your use of the drug occurred "immediately prior to arrest".4 It is unclear what the courts mean by "immediately prior to arrest," but one court held that use within two days of an arrest can clearly be enough to support a conviction and use within five days of an arrest may be enough to support a conviction.5 However, it is clear that if a defendant is experiencing withdrawal symptoms then there is no current use of the drug since withdrawal symptoms indicate a past and discontinued use of the drug.6
Drug Cases We Handle:
- Drug Diversion/Prop. 36
- Drug Manufacturing
- Drug Possession/Possession of a Controlled Substance (HS 11350)
- Drug Sales/Transportation (HS11352)
- DUI/Drugs (VC 23152(a))
- Felony Drug Charges
- Marijuana Cultivation (HS 11358)
- Marijuana Sales (HS 11360)
- Medical Marijuana/Compassionate Use Act (HS 11362.5)
- Misdemeanor Drug Charges
- Possession for Sale (HS11351)
- Possession of Cocaine
- Possession of Ecstasy
- Possession of Heroin
- Possession of Marijuana (HS 11357)
- Possession of Meth (HS11377)
- Possession of Paraphernalia (HS11364)
- Under the Influence (PC 11550)
What is willful use of a controlled substance?
If the prosecution can show you were under the influence of a controlled substance, they must show that the use was "willful". This generally means that you intended to use the drug i.e. your use of the drug was voluntary. It is not willful use if for instance you are at a bar and someone puts a narcotic in your drink without your knowledge.
What is the punishment if convicted under section 11550?
If you are convicted under Health and Safety Code 11550, it is a misdemeanor crime that carries the following punishments:
- A minimum of 90 days to one year in county jail
- Up to five years of informal probation
- Drug counseling
- Community service or labor
What are my legal defenses to a section 11550 charge?
The most common defense is to show that you didn't use a controlled substance. If the officer fails to find a controlled substance in your possession and they fail to drug test you, your defense attorney can argue that you weren't under the influence but suffering from some other physical condition that affected your behavior.
As mentioned earlier, if you didn't willfully ingest a controlled substance because you were surreptitiously drugged by another then you didn't voluntarily use the drug and cannot be convicted of violating Health and Safety Code 11550.
If you have a valid prescription for the drug and you used the drug in accordance with the prescription, you cannot be prosecuted for this crime.
If you or a loved one has been charged with Health and Safety Code 11550(a) and you would like more information with regard to your rights and options, please reach out to The Law Offices of Daniel E. Kann for a free consultation. Call us toll free at (888) 744-7730.
1California Health and Safety Code, 11150(a) further defines a "controlled substance" as 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."
2California Health and Safety Code, 11150(a) defines a "controlled substance" as one which is 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)or Section 11055...."
3CALJIC 16.060 Under the Influence ("A person is under the influence of a controlled substance if, after using it, the substance has appreciably affected the nervous system brain muscles or other parts of the person's body or is creating in them any perceptible, or abnormal, mental or physical condition.]"
4Bosco v. Justice Court of Exeter-Farmersville Judicial Dist. (1978) 77 Cal. App. 3d 179. ("[T]he People must show that a defendant used the controlled substance immediately prior to the arrest" in order to get a conviction under CA Health and Safety Code section 11550.
5People v. Jones (1987)189 Cal. App. 3d 398, 405 ("[E]ven if the evidence were construed to show use within forty-eight hours before an appellant's arrest, such usage two days before the arrest could clearly qualify for a finding of current use ....to the effect that use less distant then five days prior to arrest might support a Health and Safety Code section 11550 conviction.")
6People v. Jones, at 405 supra endnote 4, above ("Current continuing use of narcotics is to be distinguished from a past, discontinued use. Thus, withdrawal from the use of narcotics is not a crime;it is in fact the direct result of discontinuing the crime of use."