Health and Safety Code 11350 makes it a crime to possess certain controlled substances without a valid prescription. It is not a DUI statute, but it frequently shows up alongside a DUI, and when it does it adds a separate charge with its own consequences. I am Joel Brand, and here is what HS 11350 is and how it interacts with a DUI case.
What HS 11350 prohibits
HS 11350 makes it unlawful to possess specified controlled substances, drugs such as cocaine, heroin, and certain prescription medications like oxycodone or hydrocodone, unless you have a valid written prescription from a licensed physician, dentist, podiatrist, or veterinarian. Possession of even a small amount can support the charge. The statute is about simple possession for personal use, as opposed to possession for sale, which is a separate and more serious offense.
Misdemeanor or felony after Proposition 47
Historically, possession under HS 11350 was often a felony. That changed with Proposition 47, passed by California voters in 2014, which reclassified most simple drug-possession offenses as misdemeanors. Today a typical HS 11350 conviction is a misdemeanor punishable by up to a year in county jail, along with possible fines and probation. There are exceptions: a person with certain prior serious or violent felony convictions, such as those that fall under the Three Strikes law, can still face felony treatment. For most people, though, simple possession is now a misdemeanor.
How it shows up in a DUI case
HS 11350 intersects with DUI cases in a few common ways. If you are stopped on suspicion of DUI and drugs are found, the prosecution may add a possession charge on top of the DUI, which complicates the case and increases the overall exposure. If you also showed signs of impairment, the presence of the drug can be used to support a drug-DUI charge under Vehicle Code 23152(f), the driving-under-the-influence-of-drugs offense. So a single stop can generate both a possession charge and a drug-DUI charge from the same facts.
The search is often the key issue
Because a possession charge depends on the drugs being found, how they were found is frequently the heart of the defense. Drugs discovered through an unlawful search of the car or the person can be suppressed, and if the evidence is suppressed, the possession charge usually cannot stand. I examine the basis for the stop, whether there was a lawful reason to search, and whether any search exceeded its lawful scope. A successful motion to suppress can knock out the possession charge entirely, and the same Fourth Amendment issues often help the DUI.
Possession is not the same as impairment
An important point in the DUI context is that possessing a drug does not prove you were impaired by it while driving. The two are separate questions. A person can have a substance in the car without being under its influence behind the wheel, and the prosecution still has to prove actual impairment to win a drug-DUI charge, which is far harder than proving mere possession. Keeping these issues distinct prevents the possession evidence from being used to paper over a weak impairment case, which is a distinction I press in every case where both are alleged.
Diversion and treatment options
California law provides treatment-focused alternatives for many drug-possession offenses, which can allow an eligible defendant to avoid a conviction entirely. Deferred entry of judgment and drug-diversion programs under provisions like Penal Code 1000, along with the treatment options that grew out of Proposition 36, let qualifying defendants complete a treatment program and, on success, have the possession charge dismissed. These options can be especially valuable when the possession charge is tied to a DUI, because resolving the drug charge through treatment removes one piece of the exposure and demonstrates the kind of responsibility that helps on the DUI as well.
Why the possession charge can be the bigger problem
It is easy to assume the DUI is the main event and the possession charge is a minor add-on, but that is not always true. A drug-possession conviction carries its own consequences that a DUI does not, and it can be especially damaging for people in certain professions, for non-citizens facing immigration consequences, and for anyone whose record is examined for employment or licensing. In some cases the possession charge is the more serious long-term threat, which is why it deserves real attention rather than being treated as an afterthought to the DUI. I weigh the relative stakes of each charge and target the strategy accordingly.
Whose drugs were they?
A frequently overlooked defense is that the prosecution must prove the drugs were actually yours and that you knowingly possessed them. In a car with multiple occupants, or where the substance was found in a shared or accessible space, that link is not automatic. Constructive possession requires knowledge of the drug's presence and control over it, and merely being near a controlled substance is not enough. I examine exactly where the drugs were found, who had access, and what evidence ties them to you, because a weak connection on this point can defeat the possession charge independent of any search issue.
How I defend a combined possession and DUI case
I treat the possession charge and the DUI as related but separate problems. I challenge the search that produced the drugs, contest whether the substance was actually yours or knowingly possessed, pursue diversion where it fits, and separately attack the DUI on the stop, the testing, and proof of impairment. Resolving the two together, ideally with the possession charge diverted or dismissed and the DUI reduced or beaten, produces the best overall result. See my top DUI defenses and how prescription and drug issues play out in how prescription drugs affect a DUI defense.
Facing drug possession with a DUI? Let's talk.
A possession charge alongside a DUI deserves its own careful defense, which depends on your specific facts. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.