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Often referred to as California’s “using and/or being under the influence” law, HS 11550 regulates controlled substances. Although violation of 11550 is prosecuted as a misdemeanor, penalties upon conviction can be harsh, particularly for repeat offenders.
Most people readily recognize a controlled substance such as stimulants, depressants, opiates and hallucinogens, and specific drugs are identified in various sections of the HS Code. Use of drugs like methamphetamines, cocaine heroin and PCP are within 11550’s purview, but marijuana use is not. Additionally, however, many are surprised to learn 11550 also regulates unauthorized prescription drug use. Consequently, if you misuse a prescription drug containing codeine, morphine or hydrocodone, for example, you may be subject to prosecution.
An element of 11550 that must be proved for a conviction is current use of the controlled substance. As are many issues in criminal law, what constitutes current use is not precisely defined. Instead, that determination is made on a case-by-case basis. Prior decisions offer some perspective. One case held use five days before the date of arrest was within the parameters of current use. Another found that because the accused was suffering symptoms of withdrawal at the time of arrest use was not current.
Under the Influence
Alternately, the prosecution must prove you were under the influence of a controlled substance. One caution in evaluating an 11550 case is that under the influence for this purpose is different than under the influence as pertains to a DUI case. Whereas DUI under the influence requires impairment of the driver, 11550 under the influence is a lower standard of any detectable manner.
A first time conviction subjects the offender to the potential of:
• Up to one year in jail
• Up to five years of probation
• Drug counseling classes
• Fines and fees
• Community service
If you are convicted of 11550 for a third time within seven years of your initial conviction, you face a minimum of 180 days in jail.
For those who qualify, pre-trial drug diversion under Penal Code 1000 can be a good option. PC 1000 allows an accused to seek treatment and education instead of jail time and penalties. If you successfully complete the program, the 11550 charge is dismissed. To be eligible you must:
• Not have been convicted on a non- PC 1000 offense within five years
• Not have been involved in a charge of violence or threat of violence
• Not have been involved in a more serious drug charge, such as sale, transportation or possession with intent to sell
• Not have been convicted of any felony within five years
If you are not eligible under PC 1000 or are simply not guilty of the offense charged, there are potential defenses that may be applicable in your case. Whether or not any of these apply to your particular facts and circumstances must be determined by an experienced criminal defense lawyer.
• Not under the influence – If the arresting officer did not find any controlled substance in your possession, there is no circumstantial evidence. If a blood test was not taken or the results were negative, proof may be difficult. There are many reasons, including medical conditions and fatigue, which can replicate symptoms of drug use.
• A valid, legal prescription – If you were prescribed the substance in question by a licensed medical professional, and you took the medication only in the prescribed manner and under the appropriate conditions, you cannot be prosecuted under HS 11550.
If you are facing drug or any other criminal charges, the sooner you obtain legal representation, the sooner you protect your rights.