San Diego Drug Crime Attorney

Under the Influence Charges

In California, the crime of Using and/or being under the influence of a controlled substance is punished by California Health and Safety Code § 11550, which states in relevant part:

a)  No person shall use, or be under the influence of any controlled substance which is (1) 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) of Section 11055, or (2) 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.  It shall be the burden of the defense to show that it comes within the exception.  Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail.  The court may place a person convicted under this subdivision on probation for a period not to exceed five years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days.  Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail.

Nationwide efforts by law enforcement over the past few decades to curtail drug abuse have given rise to laws allowing harsh penalties simply for using or being under the influence of a controlled substance.  Under HS §11550, a person can be convicted of a misdemeanor for willfully using or being under the influence of a controlled substance, and can be punished by up to one year in county jail. The minimum punishment for a conviction for HS §11550 is 90 days in jail! T here does not need to be any intent to sell nor does the individual need to be in actual possession of a controlled substance at the time of arrest.

Since these laws were enacted, California State Legislators have afforded judges more freedom to opt out of the strict sentencing guidelines in lieu of diversion or rehabilitation programs if judge is of the persuasion that such programs will be best for the individual. This is why it is imperative that a San Diego drug crime attorney is contacted immediately who is familiar with drug diversion programs like PC 1000 and Prop 36. PC §1000 allows defendants accused of drug possession to enter a counseling and diversion program, as an alternative to punishment, and upon successful completion of the program the prosecution's case against the defendant is dismissed. Proposition 36 is a sentencing alternative, for qualified drug possession defendants without convictions for any violent crimes, to avoid jail for their conviction. For more information, please see the PC §1000 and Prop 36 page.

Drug Crime Lawyer in San Diego

The abuse of prescription drugs is also becoming a great concern for state and local authorities.  Even proper use of prescribed medicinal drugs could arise in a substantial legal battle if proof of a current prescription is not immediately available and ready for inspection upon request by law enforcement officers.   The growing trend of law enforcement to eliminate the abuse of such prescription drugs can result in disruptive and invasive investigations into the lives of otherwise law abiding citizens.

Additional issues arise with regards to allegations of HS §11550 with respect to properly prescribed medicinal marijuana.   Of a particular concern to many individuals involves the arrest and attempted prosecution of legitimate medical marijuana patients, despite having a recommendation from their doctor. Despite the passage of Prop 215, legitimate medicinal marijuana patients are often surprised to find themselves prosecuted under this section as well.   While the legal right to consume medical marijuana has been established, because the law is still unsettled in the eyes of many law enforcement officers, prosecuting attorneys, and even in some courts, charges can be filed and criminal proceedings instituted against individuals wrongfully accused of being illegally under the influence of medical marijuana.   Even with the law on their side, without proper representation, these individuals can still face the threat of incarceration and substantial fines.   San Diego County has become a forefront of the medical marijuana battle and if you are a medical marijuana patient who has been arrested for Health and Safety Code §11550, you need a lawyer familiar with the landscape of California medical marijuana laws that can defend you against this serious charge.

In order for the court to convict an individual under HS § 11550, the prosecutor need only to prove that immediately prior to the arrest there was a willful and knowing use of the drug, or that the individual was at some point impaired by the drug.  Therefore, you cannot be convicted if you were induced into taking the drug without your knowledge or against your will.  Additionally, the individual will not be subject to prosecution under HS § 11550 if they can show that there was a current and valid prescription for the drug at the time of the arrest, given to them by a Doctor licensed to do so in this state.  Attorneys at The Law Office of Marc S. Kohnen have years of experience aggressively and passionately fighting for individuals wrongfully accused of unlawful drug use.

If you or a loved one has been arrested and charged with being under the influence of a controlled substance, contact a San Diego drug crime attorney from the Law Office of Marc Kohnen today for a complimentary consultation regarding your options in this pressing matter.