Every crime in California is defined by a specific code section. Our attorneys explain the law, penalties and best defense strategies for every major crime in California.
Crimes by Code
Every crime in California is defined by a specific code section. Our attorneys explain the law, penalties and best defense strategies for every major crime in California.
California DUI
DUI arrests don't always lead to convictions in court. Police officer mistakes, faulty breathalyzers and crime lab errors may get your charges reduced or dismissed. Visit our California DUI page to learn more.
Post Conviction
A criminal record can affect job, immigration, licensing and even housing opportunities. In this section, we offer solutions for clearing up your prior record.
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Everyone knows that it’s illegal to have possession of narcotics, at least without a valid prescription. But the law in many states also makes it a criminal offense to be “under the influence” of a controlled substance.
However, what it means to be “under the influence” of a drug can depend on the offense. It can also depend on the state in which the alleged offense occurred.
Some states only require that a trace amount of the drug be found in the person’s system. Others require that the person actually be impaired by the drug.
Many states make it a crime to be under the influence of drugs or a controlled substance. What amounts to being “under the influence,” though, can depend on the:
Many states have criminal laws that prohibit being under the influence of drugs in any circumstance, not just while driving a motor vehicle. However, many of these laws define the term differently.
These differences may be nuanced or seemingly trivial. However, they can make a big difference in a particular case.
States with criminal laws that prohibit being under the influence of drugs in any circumstance tend to fall into 3 categories. They can define being “under the influence” as:
Many states fall into more than one category. These states allow for convictions for being under the influence of drugs in more than one way.
Nevada and Arizona are examples of states that require only a trace amount of a controlled substance for someone to be considered under the influence. In Nevada, it is a crime to:
“knowingly… use or be under the influence of a controlled substance except in accordance with a lawfully issued prescription.”1
The Supreme Court of Nevada has decided that being:
“under the influence” of a controlled substance for this law required “only a trace amount of the substance or its metabolites.”2
In Arizona, taking even a negligible amount of a controlled substance breaks the law. A positive drug test can be used as proof of prior use.3
Both New York and California law require some form of impairment or influence. This can be an appreciable influence on the person’s:
It can also be any detectable impairment in the person’s mental or physical condition.4
In California, the influence of drugs does not have to make the person misbehave or break a law for it to be illegal.5 However, in New York, the drug impairment has to be in public and must either:
For example: Mario smokes a cigarette laced with PCP. He drives his car safely a few yards to park it in his driveway. A police officer approaches and asks if Mario is under the influence of a drug. Mario says he is. He is staggering and his speech is slurred. His eyes are glassy and his pupils are fixed and dilated. Mario is arrested. A blood test reveals the PCP. Mario gets convicted of being under the influence.7
Colorado,8 Arizona,9 Ohio,10 Utah,11 Nevada, and California all make it a crime to use a controlled substance. The statutes that prohibit being under the influence of drugs also include the mere use of them.
For example, California Health and Safety Code 11550 HS states that,
“A person shall not use, or be under the influence of any controlled substance…”12
This requires law enforcement to prove, beyond a reasonable doubt, that the defendant took the substance a short time before his or her arrest.13 This does not require current use of the drug when the defendant was arrested.
One court of appeals in California said that evidence of drug use within 48 hours of arrest was sufficient.14 Another California Court of Appeals said that, in some cases, up to 5 days ago could be sufficient.15 However, withdrawal symptoms indicated that the drug use happened too long ago to support a conviction.16
All of these states that prohibit the mere use of illegal drugs make an exception for taking prescription drugs under a valid prescription.
All states also forbid being under the influence in certain situations, like while driving a motor vehicle.
Yes, different criminal offenses can define “under the influence” differently. This can mean that a defendant in a criminal case is sufficiently “under the influence” of drugs for one charge, but not for another.
The most apparent example is the difference between:
In California, for example, driving under the influence of drugs (DUID) is prohibited by Vehicle Code 23152(f) VC. A driver is under the influence of drugs if he or she can no longer operate the vehicle safely.
However, California also has a law that forbids being under the influence of drugs in non-driving situations. Health and Safety Code 11550 HS makes it a misdemeanor to “use, or be under the influence of any controlled substance.”17
Under this law, a defendant is considered to be under the influence if he or she has used a controlled substance that has either:
This is a lower standard than what is required for a DUID. For a DUID, the influence has to be enough to make the driver unable to drive safely.
For a violation of HS 11550, the impact of the controlled substance on the defendant only needs to be detectable.19 It does not need to be as specific or potent as what is required for a DUID conviction.
Some jurisdictions no longer prosecute charges for merely being under the influence of drugs. Los Angeles is one of these jurisdictions.
Los Angeles police will rarely enforce HS 11550 unless another criminal law is being broken, as well.20 In other locales, though, it is important to establish an attorney-client relationship with a criminal defense lawyer to fight the criminal charge.
A controlled substance is any chemical composition that is regulated by law. It includes:
Some of these substances are forbidden in all contexts. Others require a valid medical prescription to use.
States will generally have a statute that lists all of the drugs that are regulated by law.21 Most mirror the federal controlled substance list. This list is divided into 5 schedules. The schedules reflect the substance’s:
Schedule I drugs are substances with no accepted medical use and a high potential for abuse. Schedule I includes substances like:
Schedule II drugs have a high potential for abuse, but also have medical applications. Some examples are:
Schedule III drugs are less likely to be abused or create an addiction than Schedule I or II drugs. Some examples are:
Schedule IV drugs have a low potential for drug abuse and are frequently used to treat medical conditions. Examples include many common prescription medications, like:
Finally, Schedule V drugs have little potential for abuse, and are used to treat common medical problems. Examples include:
Most states treat being under the influence as a misdemeanor offense. California is one of these states.
Convictions for drug charges carry up to 1 year of jail time in county jail. However, these charges frequently come with other drug crimes, like:
These other drug offenses can carry additional penalties.
In many states, defendants accused of a first offense will be eligible for a drug diversion program. These programs will keep them out of jail. They focus on:
Defendants with prior convictions on their criminal record may not be eligible, especially if they were for possession of drugs.
A criminal defense attorney or DUI lawyer from a reputable law firm can help defendants avoid a conviction and protect their rights and future.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.