Is It illegal in California to be present where controlled substances are being used?

Most people understand that it is a crime in California to engage in illicit use of controlled substances, but can you be convicted of a crime simply for being in the same room (or car) where drug use is taking place?

HS 11365 HS makes it a crime to knowingly be present at a place where controlled substances are used.

Technically, in some cases, yes. It can be charged as a criminal offense. It largely depends on your intentions for being there and the actions you took while in that space.

California Health & Safety Code 11365 HS makes it a misdemeanor crime for someone to knowingly be present at a place where controlled substance use is occurring if the person aids or abets the drug use in some way. A conviction carries up to six months in county jail and a fine of up to $1,000.

HS 11365 says, "(a) It is unlawful to visit or to be in any room or place where any controlled substances which are specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) or paragraph (2) of subdivision (d) of Section 11055, or which are narcotic drugs classified in Schedule III, IV, or V, are being unlawfully smoked or used with knowledge that such activity is occurring.

(b) This section shall apply only where the defendant aids, assists, or abets the perpetration of the unlawful smoking or use of a controlled substance specified in subdivision (a). This subdivision is declaratory of existing law as expressed in People v. Cressey (1970) 2 Cal. 3d 836."

What Is Being Present for Illegal Drug Use?

The question of whether it's legal to be present where drug use is happening is detailed in California Health & Safety Code 11365 HS. As noted, this statute specifically makes it illegal to visit or to be present in a place where controlled substances are being unlawfully smoked or used if certain conditions are met. Specifically, a person commits a crime under this statute if:

• They have knowledge of the drug use: This speaks to intent, meaning the individual knowingly chose to be in the place where drug use was occurring.
• They did something to "aid and abet" the drug use: This involves taking actions that support or encourage the use of controlled substances, even if they don't partake themselves.

The law covers a broad list of what classifies as "controlled substances," even including Schedule III, IV, and V narcotics with minimal risk of dependency. However, common examples of controlled substances under this law include:

• Cocaine,
• Heroin,
• Peyote/Mescalin,
• Methamphetamine,
• MDMA,
• Fentanyl,
• Opioids,
• GHB.

With the approval of marijuana for recreational use, under California law, this statute no longer applies to marijuana use.

What Must Be Proven to Convict?

To convict you of a crime under HS 11365, the prosecution must prove the following elements of the crime beyond a reasonable doubt:

• You visited or were present where controlled substances were being used.
• You knew that drug use was occurring at the location or that the place was being used for that purpose.
• You knew that the other person intended to smoke or use the controlled substance.
• You took some action to assist, support, or encourage the drug use.
• You knew that your words or conduct aided or abetted them using the controlled substance.

In the context of this law, people "aid or abet" the unlawful use of controlled substances if they:

• Know another person intends to use an illegal controlled substance.
• Specifically intend to aid, facilitate, promote, encourage, or instigate the use of the substance, and
• Aid, facilitate, promote, encourage, or instigate the use of the substance.

What are Some Examples?

EXAMPLE 1: John hosts a party at his apartment where Emily and others use cocaine in the living room. John, aware of the drug use, provides straws for snorting the cocaine and allows his apartment to be used for the activity. His actions of offering a venue and paraphernalia demonstrate intentional presence, knowledge of drug use, and aiding and abetting, thus violating HS 11365.

EXAMPLE 2: Sarah drives Mike to a secluded spot, knowing he intends to use methamphetamine. She provides a lighter to help him smoke the drug and acts as a lookout. Sarah can be charged with aiding and abetting the use of controlled substances under HS 11365.

EXAMPLE 3: David walks to his friend Jason's house. On arrival, he sees David and a group of other friends taking "Molly" (MDMA). David sits in an open chair and talks to Jason but does nothing to encourage or assist the behavior. Although David was present at a place where drug use was happening, he is not guilty under HS 11365 because he did not aid or abet.

What are Related Crimes?

• Health and Safety Code 11550 HS - Under the influence of a controlled substance. This law makes it a crime when someone is found under the influence of a controlled substance or a narcotic drug and does not have a lawful prescription for the drug.
• Health and Safety Code 11350 HS - Possession of a controlled substance. This law makes it a crime for someone to possess a controlled substance unlawfully or have one in their control, such as the possession of methamphetamine. The possession of drug paraphernalia is a separate crime under HS 11364.
• Health and Safety Code 11366 HS - Operating or maintaining a drug house. This law makes it a wobbler crime (misdemeanor or felony) for someone to operate or maintain any place for the purpose of unlawfully selling, giving away, or using controlled substances.

What are the Potential Penalties?

Violating HS 11365 is a misdemeanor offense. If you are convicted, you could face the following:

• Up to six months in county jail and
• Fines of up to $1,000.

The court may also impose probation instead of jail time, including conditions such as attending drug education programs, performing community service, or undergoing drug testing.

If you are convicted of violating HS 11365, you might be eligible for California's deferred entry of judgment (DEJ) drug diversion program.

Deferred entry of judgment allows you to have your charges suspended while you complete a drug treatment program. Once you have completed the program, your charges are dismissed.

Notably, eligibility for this pretrial diversion program depends on different factors, such as whether you have a criminal record and if you violated the law while using violence or a threat of violence.

What are the Common Defenses?

A skilled California criminal defense attorney can employ several defenses to combat charges under HS 11365. Some of the most common defenses include:

• Lack of Aiding and Abetting: The key element prosecutors must prove is not that you were simply present (as that is not enough to get a conviction); you must have done something to aid and abet the drug use. Your attorney may provide evidence (such as witness testimony) showing that you took no action to encourage or help with the drug use.
• Lack of Knowledge: If your attorney can show you were unaware that controlled substances were being used at the location, you cannot be found guilty under this statute.
• No Intentional Presence: If you were at the location unintentionally or were there for a lawful purpose without intending to be around drug use, this can serve as a defense.
• Coercion or Duress: If you were forced to be present or assist in the drug use under threat of harm to yourself or your family, this can be used as a defense. The law recognizes that individuals may be compelled to act against their will under certain circumstances.

Contact our criminal defense law firm for additional information. Eisner Gorin LLP is in Los Angeles, CA.

Related Content:

• California Health & Safety Code 11365 HS
• California Penal Code 1000 PC
• People v. Brim (1968) 257 Cal.App.2d 839
• CALCRIM No. 2401. Aiding and Abetting Unlawful Drug Use