San Diego Criminal Defense

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San Diego Criminal Lawyer

San Diego Drug Use Defense Lawyer

Drug Use - Under the Influence of a Controlled Substance

Explained by a San Diego Criminal Lawyer

Health & Safety Code 11550 HS




Elements of the Crime


Penalties & Punishment



An experienced San Diego drug crime lawyer can do more for your case than you might initially think. In addition to guiding you through the legal process, an experienced criminal defense attorney is a strong advocate who can pursuade judge and jury that you are not guilty of the accused crime. Furthermore, we know the best way to support your case. 


Identifying where the cops went wrong

In a narcotics case, police officers frequently make mistakes, and those mistakes may mean the difference between a long prison sentence and freedom. While making drug busts, officers frequently:

  • Violate or ignore rules of search and seizure. 

  • "Entrap" suspects 

  • Create false or fake "confidential police informants"

  • Lie to judges in order to obtain a search warrant

  • exaggerate or outright lie in their police reports, or

  • arrest people without evidence 


Our San Diego drugs crimes lawyers understand how to analyze your case for police misconduct. We also know how to exploit problems in the prosecutor's case to your advantage. Calling an experienced San Diego drug crime defense lawyer can mean the difference between prison and freedom. 


Definition of Use of a Controlled Substance

There is some Urban Legend in the drug world that the police cannot arrest you for using a controlled substance - they can only arrest you if you are in possession of a controlled substance. I don't know where this rumor began, but it is absolutely FALSE. 


All drug use cases are based either on the California Health & Safety Code (state level case) or the Controlled Substances Act (federal level case). Exampes of common controlled substances regulated by these laws include: 

  • Cocaine

  • Marijuana

  • Heroin

  • Methamphetamine

  • GHB

  • Peyote

  • LSD and other hallucinogenics

  • Prescribed drugs such as Codeine, Adderall, Morphine,  and Oxy-Contin

Standard of Proof: 
Willfully under the influence

The prosecutor must prove that you wilfully took the drugs

Under the influence:

Additionally the prosecutor must prove that you actually took a controlled substance and were under the influence of it. For example, you cannot be convicted under this statute for taking fake-acid, while believing that you were actually tripping on acid.

Practice Areas


Elements of Proof of Use of a Controlled Substance

There are only two elements that need to be proven in order to convict you of use of a controlled substance under Health & Safety Code 11550:


  • Under the influence

  • In any detectable Manner


Under the Influence

The government must prove that you were under the influence at the time of arrest. The law is split on the exact amount of time, for example: you can potentially be arrested within 5 days of use, however if you have entered withdrawal - those are symptoms that you body is without the drug, and that can be used to successfully challenge this accusation. 


The police can infer drug influence from conduct. Which is why it's important to remember to NEVER SPEAK TO THE POLICE WITHOUT A LAWYER


In Any Detectable Manner

The manner in which you can be convicted can be shown by any observation: including observation about your behavior, your speech, your physical appearance and testing such as a blood test. It is important to hire an experienced San Diego drug defense attorney because many of these cases are based on conduct alone as the basis for arrest. If the basis for the arrest is successfully challenged as an illegal arrest, then the subsequent blood test would be excluded.  




Legal Defenses to Drug Use - "Under the Influence" HS 13550

Not Under the Influence

Withdrawal symptoms or lack of any obvious physical manifestations of drug use such as dilated pupils, slurred speech and other conduct based behavior such as twitching, most conduct can be described as the result of other conditions whether mental or physical. A good example of the short-comings of drug testing is that marijuana testing can only detect the amount of THC in a users system but cannot assess their level of impairment or influence. 


Valid Prescription

While use of prescription drugs may be prosecuted under this act, having a valid prescription for those prescription drugs is an affirmative defense to this charge. People are different, and not everyone carries their whole pill bottle with them throughout the day. Police routinely make the mistake of arresting a person with a perfectly valid prescription for the loose pills they are carrying. 


Involuntary Intoxication

The intoxication you are being charged with must be the result of a voluntary action on your part - that means that you must have taken the drug free from any pressure or influence. Peer pressure is not enough to render intoxication involuntary, however being "dosed" or slipped a drug unknowingly is a wrong and tragic situation, and also a defense to this charge. 


Penalties and Punishment

Being under the influence of a controlled substance law is a misdemeanor, and that can carry severe consequences. If you are found guilty of a violation of HS 13550, you face:

  • informal probation (up to 5 years)

  • County Jail (up to 1 year)

  • Mandatory drug counseling, and

  • Possible community service or labor.


If you suffer a third conviction within seven years of your first conviction, and you have refused court-appointed drug treatment, you will be sentenced to 180 days in the county jail.