In California, it is illegal to possess, consume, or be under the influence of benzodiazepines (“benzos”) without a valid prescription. Benzodiazepines are the most commonly abused prescription drug in the United States.
1. What are benzodiazepines?
Benzos are listed as Schedule IV drugs per the Controlled Substances Act. They are minor tranquilizers commonly prescribed for:
- insomnia,
- anxiety,
- seizures,
- drug and alcohol withdrawal, and
- muscle spasms.
The Food and Drug Administration has approved 15 different types of benzos. The most common include:
- Valium,
- Xanax,
- Klonopin, and
- Ativan.
2. Is it a crime to use benzodiazepines?
Yes. In California, HSC 11550 prohibits:
- using benzos and/or
- being under the influence of them.1
An exception is if you have a current and valid prescription for the drug.2
Note that you violate HSC 11550 if you are under the influence in “any detectable manner.” Prosecutors do not need to prove you are impaired or committed misconduct to convict you.3
Using or being under the influence of benzos is prosecuted as a misdemeanor in California, carrying:
- Up to 1 year in jail and/or $1,000, and
- Up to five years of informal probation, and
- Drug counseling, and
- Possible community service.4
However, a third conviction within seven years carries 180 days in jail unless you complete court-appointed drug treatment.5
Note if you are a first-time offender, you may be able to get the charge dismissed by completing a diversion program.
3. Is it a crime to possess these drugs?
Yes. HSC 11375 makes it a California crime to
- possess benzos (unless you have a lawful prescription),
- possess benzos with the intent to sell them, and/or
- sell benzos.6
This chart shows the penalties for these benzos crimes.7
| Benzos Offense | California Penalties |
| Possession | Infraction: A fine or Misdemeanor: Up to 1 year in jail and/or $1,000 |
| Possession for sale, or selling | Misdemeanor: Up to 1 year in jail and/or $1,000 or Felony: 16 months, 2 years, or 3 years in jail and/or up to $10,000 |
Note that first-time possession charges can usually be dismissed by completing a diversion program.
4. What are the best defenses?
Common defenses to benzos use charges under HSC 11550 include that you:
- were not “under the influence,” and/or
- had a valid prescription for the drug.
Common defenses to benzos possession/sale charges under HSC 11375 include that you:
- had a lawful prescription for the drug,
- did not “possess” the drug, and/or
- had no intent to sell the benzos.
Defenses that could work for both crimes include:
- You were entrapped,
- The police found the drugs through an unlawful search,
- You took the drug out of a legitimate medical necessity,
- Police misidentified the substance at issue as benzos, or
- You were falsely accused.
If prosecutors fail to prove every element of the crime beyond a reasonable doubt, you cannot be convicted at trial in California.
5. What about DUI of benzodiazepines?
Under Vehicle Code 23152c VC, driving while addicted to drugs is a form of California DUI. You are considered “addicted to drugs” if you are physically or emotionally dependent upon them.
Most first, second and third instances of driving while addicted to a drug are misdemeanors. Meanwhile, fourth and subsequent offenses can be charged as felony DUI.8
Common defenses to drugged driving charges are:
- The police lacked reasonable suspicion to pull you over,
- You drove out of necessity (an emergency), and any reasonable person in your position would have driven too,
- You were suffering from a medical condition that police misconstrued as being high, and
- Your blood test was contaminated.
Additional Resources
If you are struggling with substance abuse addiction, you can find help here:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Recovery Centers of America – Treatment centers in seven states.
- SMART Recovery – Group therapy for young people struggling with addiction.
- Partnership to End Addiction – Information on how to find drug addiction treatment
Legal References:
- CALCRIM No. 2400 – Using or Being Under the Influence of Controlled Substance, Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Little (2004) 115 Cal.App.4th 766.
- CALCRIM No. 2400.
- People v. Culberson (1956) 140 Cal.App.2d Supp. 959. See also People v. Canty (2004) 32 Cal.4th 1266; and, People v. Enriquez (1996) 42 Cal.App.4th 661.
- California Health and Safety Code 11550 HS.
- See same.
- California Health and Safety Code 11375b1 HS.
- California Health and Safety Code 11375b2 HS.
- Vehicle Code 23152c VC.
