Although it is not often prosecuted or brought to court, the offense of being under the influence of a controlled substance, when the user does not hold a valid prescription for the substance, is illegal.
This would include drugs such as heroin and cocaine but also common painkillers like Oxycodone. If you are arrested in relation to being under the influence of a controlled substance, it is still important to have an attorney to represent your best interests.
Under California Health and Safety Code Section 11550 HS it is unlawful to use or be under the influence of controlled substances like narcotics and prescription medications without having an appropriate prescription for its use.
Under this specific code, using controlled substances is prohibited without an accompanying prescription. If police find that someone who appears to be affected by drugs (by way of their physical appearance or actions) they may immediately request proof that the person has obtained it legally and for a specific purpose.
Both prescribed medication (Vicodin, Xanax, Oxycodone) as well as illegal substances (cocaine, LSD, MDMA) fall under this code. Of note is the fact that marijuana does not fall under California Health and Safety Code Section 11550 but rather is prosecuted under its own laws.
In order to satisfy the requirements for a conviction for this offense, the prosecution must show that a defendant:
You will notice the importance of the word ‘willfully’ which refers to an action that was done willingly or on purpose. This makes all the difference to the case, because as we’ll discuss later, this is one aspect of this crime that can be put into question when defending a controlled substance case.
In a case where it is found that someone had ingested drugs and fell under the influence of this substance without their knowledge or consent, it is unlikely a crime can be charged.
The use of the drug must also have been no more than 5 days before the arrest in many cases, as someone cannot be arrested for past drug use.
A Drug Recognition Expert can be called in to provide expertise and go on record identifying the defendant as being under the influence.
Other evidence may include the testimony of the officers who were there at the time of arrest as well as the results of an administered chemical test.
Illegal use of a controlled substance as outlined under California Health and Safety Code Section 11550 HS will be likely prosecuted as a misdemeanor.
If convicted of a misdemeanor, one can expect to serve up to one year in county jail. A long probation period of up to five years may take the place of jail time if the person convicted agrees to attend regular drug meetings such as Narcotics Anonymous for more than fifty-two sessions.
Upon a second offense (within a 7-year period) a person convicted of this crime would be subject to a mandatory 6 months in jail.
Special programs may be available to those who have been convicted of the crime of using a controlled substance for the first time. Agreeing to complete a drug diversion program may result in sentencing being deferred to a later date 12 to 18 months down the road. In what is called a ‘pretrial diversion,’ if the defendant completes this attendance the case could possibly be dismissed. On the other hand, if the program is not completed, the formal sentence will go ahead.
There are many chances to fight the charges of being arrested for the use of a controlled substance, so you are better off working with a lawyer who knows how to take advantage of these rules.
An arrest for the use of controlled substances does not need to result in a conviction in court. If you have the right lawyer, one well-versed in these types of crimes, it is very possible that you can have the charges dropped.
It’s possible to fight charges against you involving the use of controlled substances if you can show that the substance ingested was not done on purpose or willfully, if you were detained illegally, and if there were procedural problems during the time that the arrest was taking place.
Three possible defenses outlined are as described:
The use of the controlled substance must be done willfully. So, if someone was secretly slipped a substance and they then are affected by the drug, if the defense attorney can prove that this use was not done on purpose the defendant will likely be free from the charges.
If the police detain a defendant under illegal circumstances and then it is determined that they are under the influence of a controlled substance, that charge can be dismissed due to the way that defendant was detained.
If the defendant was not properly read their rights (‘Mirandized’) then any confession that happens would not be valid in court. When you are arrested, law enforcement is required to follow certain procedures and if they do not, it may put into question any evidence that was obtained (including information that you tell them.)
If you have been arrested in relation to California Health and Safety Code Section 11550 HS it is important to immediately speak with a seasoned controlled substances attorney. There are many different ways to avoid a conviction and jail time. Los Angeles Criminal Defense Attorneys Daniel Perlman and Matthew Cohen have successfully represented clients in controlled substance cases.
To get into contact with someone who can help you with your case, call our offices at (310) 557-1700 and we will connect you with our knowledgeable attorneys.
