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California Health And Safety Code 11365 HS - Being Present While Someone Else Uses Controlled Substance


According to California Health & Safety Code 11365 HS, it is considered a misdemeanor for an individual to be present at a location where controlled substance use is taking place, if they actively assist or facilitate the drug consumption in any way. While many people are aware that using or possessing drugs and other controlled substances is prohibited, some may be surprised to learn that simply being present in a place where drugs are being consumed can sometimes be against the law. This means that being in the wrong place at the wrong time can lead to arrest and charges under this statute.

Please note: This code section does not apply to marijuana.

11365: (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.

Elements of Crime Under HSC 11365

To secure a conviction under the mentioned statute, the prosecutor must prove the following elements:

  • The defendant willfully and intentionally visited or were present at a location, which includes a car, where someone else was smoking or using a controlled substance.
  • The defendant had knowledge that the other person intended to smoke or use the controlled substance.
  • The defendant had the intention to aid and abet the other person in smoking or using the controlled substance.
  • The defendant had the intention to aid and abet the other person in smoking or using the controlled substance.
  • The defendant knew that their words or conduct were aiding or abetting the other person in using the controlled substance.

According to this code section, individuals may be considered to have “aided or abetted” the illegal use of controlled substances if they:

  • Are aware that another person intends to use an illegal controlled substance,
  • Exhibited a specific intention to aid, facilitate, promote, encourage, or instigate the use of the substance, and
  • Actually provided aid, facilitation, promotion, encouragement, or instigation towards the use of the substance.

The law specifies that controlled substances encompass drugs such as cocaine, cocaine base, heroin, methamphetamine, mescaline, peyote, and Gamma hydroxybutyric acid (GHB).


Emily provides Mark with a straw, specifically with the intent of facilitating the snorting of cocaine. Mark, influenced by Emily’s suggestion, uses the straw Emily gave him and engages in cocaine intake through snorting.

Mike distributes hypodermic needles to individuals present at a party, expressing that they are meant for drug use. The specific purpose of these needles is for administering drugs through injection. The recipients of the needles subsequently use them to inject drugs during the party.

Alice actively encourages Bob to use heroin through intravenous injection. Bob, under Alice’s influence, proceeds to follow her advice and uses heroin in this manner. This scenario demonstrates the act of encouraging another person to engage in drug use, particularly through a dangerous method like intravenous injection.

These examples highlight individuals actively encouraging, facilitating, or enabling the use of drugs through specific methods and means. It is important to recognize that such actions can carry legal implications and potentially cause harm to those involved.

Penalties, Punishment, And Sentencing

Violating HS 11365 is considered a misdemeanor offense. If convicted under this law, individuals may face the following penalties:

  • Custody in county jail: Misdemeanor convictions can result in imprisonment in a county jail for a maximum period of six months. This is an alternative to being sentenced to state prison.
  • Fines: The convicted individual may be required to pay fines up to a maximum of $1,000.

It’s worth noting that a judge retains the discretion to grant misdemeanor probation instead of jail time. In such cases, the probation may be accompanied by conditions such as community service.

Deferred Entry of Judgement Program for Health and Safety Code 11365 Conviction

Additionally, individuals convicted under HS 11365 might be eligible for California’s “deferred entry of judgment” drug diversion program. This program allows individuals to have their charges temporarily suspended while they complete a drug treatment program. Upon successful completion, their charges are dismissed.

Eligibility for this pretrial diversion program depends on factors such as the defendant’s criminal record and whether the offense involved violence or a threat of violence.

Defense Strategies To Fight Charges Under Health and Safety Code 11365

When accused of a crime under this statute, individuals have the ability to defend themselves by presenting legal arguments. Three commonly used defenses include:

  • Lack of aid or abetment: This defense asserts that the accused did not provide assistance or support to the person committing the crime in question. By demonstrating their lack of involvement in aiding or abetting, the accused aims to challenge the accusation made against them.
  • Lack of knowledge of drug use: This defense argues that the accused had no awareness or knowledge that someone in their vicinity was utilizing drugs. By proving their unawareness, the accused attempts to dispute the accusations stating their involvement or connection to drug-related activities.
  • Violation of constitutional rights by law enforcement: This defense contends that the actions taken by law enforcement during the investigation or arrest of the accused violated their fundamental constitutional rights. By highlighting such violations, the accused seeks to challenge the legitimacy and admissibility of evidence obtained and the overall legality of the law enforcement process.

Immigration Consequences

Depending on the circumstances, Health and Safety Code 11365 can potentially be categorized as a deportable offense. It may fall under the category of a crime involving moral turpitude or an aggravated felony, both of which can have severe immigration consequences. However, the specific immigration consequences may vary on a case-by-case basis, considering factors such as the individual’s immigration status, prior criminal history, and the nature of the offense.

To fully understand the immigration consequences of Health and Safety Code 11365 in a particular case, it is highly recommended to consult with an experienced immigration attorney. They can provide personalized advice and guidance based on the individual’s specific circumstances, helping navigate the complex intersection between criminal and immigration law. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

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Speak With Criminal Defense Lawyer From Tabibnia Law Firm

If you find yourself facing charges for being present during the unlawful use of controlled substances, it is crucial to consult with a skilled Los Angeles Criminal Defense Attorney. Schedule a confidential consultation with Cyrus Tabibnia, an experienced attorney at Tabibnia Law Firm, by calling 866-713-2159.

For more information about Health and Safety Code 11365, and to schedule your free consultation, call 866-713-2159

Cyrus Tabibnia

Cyrus Tabibnia

Cyrus Tabibnia, also known as Shahrooz Tabibnia, is a criminal defense lawyer in Los Angeles, California. With a law degree from Loyola Law School, Los Angeles, he has been practicing law since 2005 and holds license #237348. With over 18 years of experience, Cyrus specializes in various misdemeanor and felony criminal Law including Domestic Violence, Theft Crime, Sex crime, DUI & DWI, Personal Injury, Employment Law, and Cannabis & Marijuana Drugs Law. Being bilingual in English, Persian, and Spanish enables him to effectively communicate with a diverse range of clients. From 2014 to 2018, he served as a board member of the Iranian American Bar Association. An expungement attorney in Los Angeles who can assist you in clearing your criminal record in the state of California.

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