Using or Being Under the Influence of Drugs (Health & Safety Code §11550)
Using or Being Under the Influence of Drugs ("under the influence") is willfully using and being under the influence of a controlled substance or an illegally obtained prescription drug. An under the influence charge can also apply where the defendant has a prescription for the drug, but has taken an amount in excess of the prescribed dosage.
Under the Influence is a misdemeanor. Defendants charged with being under the influence may qualify for drug treatment, instead of jail time, through a Penal Code § 1000 Drug Diversion program or a Proposition 36 drug program.
If you or someone you care about is facing a drug charge, the criminal defense attorneys at the Weinrieb Law Firm can help explain the charges and properly defend against them. We can be reached twenty-four hours a day, seven days a week at (818) 933-6555.
Elements of Using or Being Under the Influence of Drugs
The prosecution must prove the following facts to convict a defendant of using or being under the influence of drugs:
(1) Defendant "used" or was "under the influence" of a drug
- "Use" means that the defendant took the drug at some time shortly before the arrest so that the drug is still actively affecting him
- "Under the Influence" requires evidence that the defendant's conduct is being influenced by drugs in some recognizable manner
(2) The "drug" was a controlled substance or an illegally obtained narcotic drug.
As an alternative to jail time, a defendant charged with being under the influence may qualify for one of the following drug treatment programs:
- Punishment and Drug Treatment for Being Under the Influence
- Being under the influence is a misdemeanor and can be punished as follows:
- Minimum 90 days in county jail; maximum of one year in county jail
- Up to five years informal (summary) probation
- Drug counseling or classes
- Caltrans or community service
Penal Code § 1000 Drug Diversion
Under Penal Code section 1000 Drug Diversion, the defendant pleads "guilty" to being under the influence. Entry of judgment against the defendant on the guilty plea is then deferred (not entered by the court) while the defendant attends a qualifying drug treatment program. If the defendant successfully completes the program, and any other conditions imposed by the court, the case is then dismissed in its entirety (even though the defendant had previously entered a guilty plea).
To be eligible for Drug Diversion, the following requirements must be met:
- Defendant has no prior convictions for any controlled substance offense
- Defendant has not had probation or parole revoked in any prior case without later completing the probation or parole
- Defendant has not been granted Drug Diversion in the previous 5 years
- The Defendant has no felony convictions within the previous 5 Years
- The current charges do not involve violence
- The current charges do not include another drug violation charge that does not qualify for Drug Diversion (for example, Driving Under the Influence of Drugs)
Under Proposition 36, the defendant pleads "guilty" to being under the influence, is placed on probation, and must complete one year of drug treatment and 6 months of after-care. If the defendant successfully completes the rehabilitation program and any other terms of probation, the charges may then be dismissed by the court.
To be eligible for Proposition 36, the following requirements must be met:
- The current charge is for non-violent drug possession for personal use
- Defendant has no "violent" or "serious" felony convictions within the previous 5 years
- Defendant is not convicted in the same case for any misdemeanor or felony that is not a non-violent drug possession charge
- Defendant has not refused drug treatment as part of Proposition 36 probation
- Defendant has not already participated at least twice in Proposition 36 or another drug treatment program AND the court determines that drug treatment is ineffective to treat the defendant
Defenses to an Under the Influence Charge
Potential defenses to an under the influence charge will depend on the facts of the case, but may include:
- Defendant did not "use" or was not "under the influence" – these determinations may be challenged because they are subjective and based on observations
- No "drug" was involved – for example, the defendant had a valid prescription for any "drug" allegedly used
Contact UsIf you or someone you care about is facing criminal investigation or criminal charges of any type, please contact the criminal defense attorneys at the Weinrieb Law Firm. We can be reached twenty-four hours a day, seven days a week at (818) 933-6555, or through the confidential and secure email form on the firm's website at www.VWattorneys.com.