Under the Influence or Use of Drugs

Under the Influence or Use of Drugs Section 11550 of the California Health and Safety Code makes it unlawful to be under the influence or to use certain drugs listed in the California Health Safety Code:

Schedule I opiates section 11054(b): opium derivatives; the depressants mecloqualone, methaqualone, and gamma hyroxybutyric acid (GHB); cocaine base; mescaline; peyote; the hallucinogenic phencyclidines, including PCE and TCP; Schedule II opium and its derivatives, coca leaves, cocaine, and ecgoine section 11055(b): opiates; amphetamine and methamphetamine; the depressant phencyclidines, including PCP; Schedule III, IV, and V, narcotic drugs section 11056 et seq.

Someone is under the influence of a controlled substance if that person has taken or used a controlled substance that has appreciably affected the person's nervous system, brain, or muscles or has created in the person a detectable abnormal mental or physical condition. To use means generally within 24 to 48 hours prior to arrest.1

If prescribed by a licensed physician then the prohibition does not apply, however, this is a defense and must be proven. The prescription defense is found in Health and Safety Code section 11550. The defendant need only raise a reasonable doubt about whether his or her use of the drug was lawful because of a valid prescription.2

The offense is a misdemeanor and there is a mandatory minimum of 90 days, and up to 1 year in a county jail, and up to 5 years probation; the mandatory 90 days can be excused if defendant enters a licensed drug rehabilitation program; if a person has two prior convictions within 7 years and refuses to complete a drug rehabilitation program then the sentence is 180 days to one year in county jail.

However if a person is experiencing an overdose they may seek medical assistance and not be charged with a violation of this offense;3  nor is it a violation if someone is under the influence and seeks medical assistance for another person experiencing a drug over-dose.4

If during the commission of this offense while unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or PCP you are found to be in immediate personal possession of a loaded, operable firearm then the offense is a felony punishable by a state prison commitment of 16 months, 2 or three years, or up to one year in a county jail.5

Toluene and Nitrous Oxide

Under the Influence or Use of Drugs Under the Penal Code it is a misdemeanor to, “knowingly and with the intent to do so,” be under the influence of toluene or a material containing toluene, or a combination of hydrocarbons,6  or to be under the influence of any substance or material determined by administrative regulation to have toxic qualities similar to toluene.7

It is also a misdemeanor to be under the influence of nitrous oxide or a material containing nitrous oxide, except when it is administered by licensed personnel for medical, surgical, or dental care.8

1People v. Jones, 189 Cal.App.3d 398
2People v. Mower (2002) 28 Cal.4th 457
3Section 11376.5(b) of the California Health and Safety Code
4Section 11376.5(a) of the California Health and Safety Code
5Section 11550(e) of the California Penal Code
6Section 381(a) of the California Penal Code.
7Section 381(b) of the California Penal Code
8Section 381b of the California Penal Code