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Is It Illegal to Be Present When Others Are Using Drugs?

Your parents may have told you to stay away from people who are using drugs.  You may have heard such advice and thought that your parents were simply offering yet another bit of patronizing advice you could disregard with adolescent defiance, like well-meaning parents who nag a child to brush one’s teeth after every meal.
Summary in 50 Words or Less: California Health & Safety Code § 11365 makes it a crime to be present when others are using illegal controlled substances (not including marijuana) and to aid, assist or abet (promote or encourage) such use taking place.  The crime is a misdemeanor punishable by up to six months in county jail and a $1,000 court fine.
Whether your parents knew it (or more likely they did not), California Health & Safety Code § 11365 in fact makes it a crime for one to willfully and intentionally visit or be present when others are unlawfully using a controlled substance. 

The person merely present must know that the others are using a controlled substance such as cocaine, heroin, peyote, mescalin, GHB (gamma hydroxybutyric acid) or methamphetamine.  Marijuana is excluded from Health & Safety Code § 11365.
The place at issue commonly is a car or apartment, house or condominium, although it could also be a bar’s restroom or a parking lot.

This crime, a misdemeanor punishable by up to six months in county jail and/or a $1,000 court fine (plus penalties and assessments), is more than just “being at the wrong place at the wrong time.”  Defendant must somehow aid, assist or abet (promote, facilitate, initiate or encourage) in the unlawful smoking or use of a controlled substance such as cocaine, meth or heroin.  This requires an affirmative act such as telling another person to look for cops, serving as a lookout, holding drug paraphernalia for someone else or using one’s body to obstruct a view of the other person using the illegal drug.  It could also be something as little as, for example at a party, telling others to “party on!”

Van Nuys CourthouseVan Nuys Courthouse

There is no corresponding requirement that defendant have such a controlled substance in one’s possession or be under the influence of a controlled substance, although either or both are commonly also an issue and may be additional grounds for an arrest and charges.
Defendant may also be charged with operating a drug house under Health & Safety Code § 11366 if the home, apartment or condominium is owned, rented or leased by defendant.  Defendant commonly also has in his or her possession drug paraphernalia, a violation of Health & Safety Code § 11364.

The most common defense to this offense is lack of knowledge by defendant that others were using or intending to use an illegal controlled substance.  For example, one may be at a party and not know that others are using cocaine in a back bedroom. 

Similarly, one could argue as a defense that defendant did nothing affirmative to aid or abet another’s use of a controlled substance, i.e. defendant walked away from the others using cocaine, heroin or meth.
Punishment for violation of Health & Safety Code § 11365 often is an order to attend a drug treatment program, although it can include, as stated above, up to six months in county jail and a court fine of up to $1,000, plus penalties and assessments.  A resolution involving probation most certainly would include a prohibition that one not associate with or be present with others who are known drug users.

Community service or Cal-Trans may also be ordered.

This type of offense can be particularly harmful to anyone with a professional license involving medicine, such as a medical doctor, pharmacist or dentist, so it is important that one defend such charges vigorously.  In such cases, it is critical that the defendant do his best to avoid even a plea of no contest or guilty, as in a deferred entry of judgment to avoid suspension or revocation of one’s license. 

If the person holding a professional license does resolve the case with a conviction, it is best to try to resolve the case without any jail time and with a plea to a charge other than 11365, such as trespassing (Penal Code § 602) or disturbing the peace (Penal Code § 415(2)), preferably as an infraction, but as a last option as a misdemeanor.  Resolving the case with a misdemeanor conviction is doubly hurtful because it is a more serious offense than an infraction and it requires some term of informal probation, which prevents the license holder from showing the licensing board rehabilitation, as rehabilitation cannot begin until probation ends.

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