Health and Safety Code 11350 HS is a California statute that prohibits possession of specified controlled substances without a valid prescription from a licensed physician, dentist, podiatrist, or veterinarian. A controlled substance under this statute includes illicit drugs regulated by the United States Controlled Substances Act and prescription medications not lawfully prescribed to the possessor.
The statute applies to possession in three distinct forms. Actual possession occurs when the controlled substance is found on the person's body or under their direct physical control, such as in a glove compartment of a vehicle they are driving. Constructive possession exists when an individual maintains the right to control the substance even without physical contact, specifically when the drug is located in an area under their control. Joint possession involves two or more individuals sharing actual or constructive possession of the same controlled substance simultaneously.
Prosecutors must establish five elements beyond a reasonable doubt to secure a conviction under California Jury Instruction CALCRIM 2304. The prosecution must prove the defendant possessed a controlled substance or analog thereof, lacked a valid prescription for the substance, knew of the substance's presence, recognized its nature as a controlled substance, and possessed a usable amount of the drug. The usable amount requirement protects individuals found with trace quantities insufficient for consumption, though it does not require an amount capable of producing intoxication.
The statute covers specific controlled substances enumerated in subdivisions (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054, paragraphs (14), (15), or (20) of subdivision (d) of Section 11054, subdivisions (b) or (c) of Section 11055, subdivision (h) of Section 11056, and any controlled substance classified in Schedule III, IV, or V designated as a narcotic drug. Examples include opiates, cocaine, heroin, peyote, codeine, and hydrocodone.
Marijuana and stimulants fall outside the scope of 11350 HS. Marijuana possession is governed by Health and Safety Code 11357 HS, while methamphetamine and other stimulants are addressed under Health and Safety Code 11377 HS. Proposition 47, passed on November 4, 2014, subsequently reclassified possession of controlled substances under this section from a felony to a misdemeanor.
The statute encompasses two primary categories of controlled substances: any controlled substance classified in Schedule III, IV, or V that qualifies as a narcotic drug, and specific controlled substances enumerated in particular subdivisions of California's Health and Safety Code sections 11054, 11055, and 11056.
Schedule III narcotic drugs possess moderate to low potential for abuse with accepted medical applications. These substances carry moderate physical dependency risks or high psychological dependency potential. The schedule includes narcotic drugs containing limited quantities such as codeine preparations not exceeding 1.8 grams per 100 milliliters or 90 milligrams per dosage unit when combined with an equal or greater quantity of an isoquinoline alkaloid of opium. Dihydrocodeine preparations follow similar quantity restrictions, while ethylmorphine is limited to 300 milligrams per 100 milliliters or 15 milligrams per dosage unit. Morphine preparations are restricted to 50 milligrams per 100 milliliters or per 100 grams when combined with active, nonnarcotic ingredients.
Schedule IV substances maintain well-documented medical purposes but carry a slightly higher risk of abuse or dependency compared to Schedule V drugs. Common examples include alprazolam, diazepam, zolpidem, and tramadol. These medications are frequently prescribed for anxiety disorders, panic attacks, sleep disorders, and pain relief.
Schedule V substances represent the lowest potential for abuse among controlled substances while retaining recognized medical applications. These drugs often serve as ingredients in prescription medications treating common ailments like cough or diarrhea. Examples include codeine-based cough syrups with limited codeine quantities, diphenoxylate paired with atropine, ethylmorphine, difenoxin, and buprenorphine.
Beyond the scheduled narcotic drugs, the statute specifically identifies controlled substances listed in subdivisions (b), (c), (e), or paragraph (1) of subdivision (f) of Section 11054, which includes various opiates and opium derivatives. Paragraphs (14), (15), or (20) of subdivision (d) of Section 11054 encompass additional regulated substances. Subdivision (b) or (c) of Section 11055 covers certain depressants and stimulants. Subdivision (h) of Section 11056 addresses hallucinogenic substances, specifically dronabinol in sesame oil encapsulated in soft gelatin capsules when approved by the federal Food and Drug Administration.
Substances such as heroin, cocaine, morphine, oxycodone, hydrocodone, codeine, methadone, and ketamine fall under this statute's purview.
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Violations under this statute are classified as misdemeanors punishable by imprisonment in county jail for not more than one year. The court may impose a fine not exceeding $1,000 in addition to or instead of jail time. Judges possess discretion to assess an additional fine not exceeding $70, with proceeds allocated according to Section 1463.23 of the Penal Code. The court must consider the defendant's ability to pay, and no individual shall be denied probation due to inability to pay this supplemental fine.
Certain individuals face felony charges rather than misdemeanor prosecution. Persons with one or more prior convictions for offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code, or offenses requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code, are subject to punishment pursuant to subdivision (h) of Section 1170 of the Penal Code. These enhanced penalties include 16 months, 2 years, or 3 years in jail, with a maximum fine of $10,000.
Offenders may qualify for diversion programs that allow rehabilitation instead of incarceration. Drug court represents an alternative to traditional sentencing, where successful completion of treatment results in case dismissal. Courts maintain multiple sentencing options including probation with no jail time but mandatory community service, work release programs, and substance abuse classes. Summary or informal probation serves as another alternative to custody.
Proposition 36 introduced treatment-mandated felony provisions for individuals arrested for possessing hard drugs such as fentanyl, heroin, cocaine, or methamphetamine who have two prior drug convictions. Under this framework, successful treatment completion results in charge dismissal, whereas failure to complete treatment carries up to three years of incarceration. Courts have become more receptive to arguments favoring treatment over punishment, particularly since Proposition 47 aimed to channel drug possession offenders into treatment rather than prison. Drug convictions carry additional consequences beyond immediate penalties, including difficulties obtaining employment, military enlistment barriers, and obstacles to professional licenses and permits.
Two primary exceptions exempt individuals from criminal liability under this statute: possession pursuant to a valid prescription and authorized third-party possession for delivery purposes.
Possession of a controlled substance pursuant to a valid prescription from a licensed California physician, dentist, podiatrist, or veterinarian constitutes a complete defense to charges under this statute. The valid prescription defense requires three elements: documentation of the prescription, evidence the prescription was valid at the time of alleged possession, and confirmation that the quantity possessed was consistent with the prescription. Prosecutors typically dismiss cases outright once defense counsel produces a copy of the prescription and presents it to the prosecution. When an individual loses the prescription document, medical records obtained through online databases serve as acceptable proof of prescription validity.
Cases involving defendants who genuinely believed they had valid authorization, even if technically incorrect, are analyzed under both the valid prescription defense and the lack of knowledge defense. This dual-analysis approach recognizes that good faith belief in prescription validity may negate the knowledge element required for conviction.
California law permits individuals other than the prescription holder to possess controlled substances under specific circumstances. Two conditions must exist simultaneously: the possession occurs at the direction or with the express authorization of the prescription holder, and the sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner. This exception specifically facilitates legitimate transfers necessary for patient care and proper disposal.
The statute explicitly prohibits use of a controlled substance by anyone other than the prescription holder. Furthermore, distribution or sale of a controlled substance inconsistent with the prescription remains unlawful regardless of authorization for possession. These limitations ensure the exception applies narrowly to scenarios involving lawful delivery or disposal rather than expanding access to controlled substances beyond prescribed parameters.
Courts imposing probation for felony convictions under this section must order specific conditions unless unusual circumstances exist where such conditions would not serve the interest of justice. These mandatory probation conditions apply in addition to any other requirements the court may impose at its discretion. Beyond the statutorily mandated financial penalties, probation terms typically include prohibitions against violating any law other than traffic infractions, regular visits with a probation officer as required by the probation terms, and random drug testing. Defendants may also face requirements to attend drug counseling or participate in drug diversion programs pursuant to California Penal Code section 1000 or Proposition 36, provided they qualify for such programs.
A first offense under this statute requires imposition of a fine of at least $1,000 or community service. Courts maintain discretion to order either the monetary fine or community service as the primary probation condition. The statute provides an alternative mechanism for defendants lacking financial means, as community service shall be ordered in lieu of the fine when a defendant does not have the ability to pay the minimum specified amount. This provision ensures probation remains accessible regardless of economic circumstances while maintaining accountability through service requirements.
Defendants facing a second or subsequent offense encounter escalated probation conditions. The mandatory minimum fine increases to $2,000 or community service for these repeat violations. This enhanced financial penalty reflects the heightened concern associated with recidivist behavior. Similarly, defendants unable to meet this higher financial threshold receive community service orders as a substitute. The parallel structure between first and subsequent offenses maintains consistency in the treatment of indigent defendants while imposing progressively stricter requirements on those with prior convictions.
Several legal defenses exist for individuals facing charges under this statute, each addressing specific weaknesses in the prosecution's case. The most frequently employed defense challenges the legality of the search and seizure that produced the evidence. Defendants file a motion to suppress evidence under Penal Code section 1538.5 pretrial in superior court, arguing violations of Fourth Amendment protections against unreasonable searches. Courts examine whether the traffic stop lacked reasonable suspicion, whether detention extended beyond its lawful purpose, whether a search incident to arrest exceeded permissible scope, whether probation or parole search terms were violated, whether warrants contained defects such as stale information or omitted material facts, or whether consent was coerced or exceeded its scope. When judges find constitutional violations and suppress drug evidence, prosecutors often cannot proceed with charges.
Lack of knowledge constitutes another viable defense where defendants must prove they were unaware of the drug's presence or did not recognize its nature as a controlled substance. This defense applies particularly in constructive possession cases involving shared vehicles, shared apartments, or situations where multiple individuals had access to the location where drugs were discovered. Prosecutors must establish that defendants possessed knowledge of the drug's presence, knowledge of its nature, and dominion and control over the substance.
Additionally, defendants may assert momentary possession, demonstrating they held the controlled substance for a transitory period solely to destroy, abandon, or dispose of it without intention to prevent law enforcement from obtaining the substance. Challenging the prosecution's evidence represents another approach, including requesting lab reports and underlying notes, demanding samples for independent testing, challenging chain of custody where evidence handling was inadequate, and arguing that residue or trace amounts fail to meet the usable quantity requirement. Police misconduct defenses involve pursuing Pitchess motions to obtain relevant records tied to officer dishonesty, bias, or similar conduct.
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This page was reviewed and approved by William S. Kroger, a leading criminal defense attorney in Los Angeles. Mr. Kroger has decades of experience defending clients in both state and federal courts. He is recognized for his strong trial skills and dedication to protecting the rights of the accused. Throughout his career, he has successfully represented clients facing a wide range of serious criminal charges. His personalized defense strategies are designed to achieve the best possible outcome in every case. Clients trust Mr. Kroger for his knowledge, commitment, and proven results.
He is also an active member of respected legal organizations, including the American Bar Association and the National Association for Criminal Defense Lawyers. With his expertise and reputation, William S. Kroger is regarded as one of California’s top defense lawyers.
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