Everyone knows that it is illegal to have possession of narcotics, at least without a valid prescription. However, the law in many states also makes it a criminal offense to be “under the influence” of a controlled substance.
However, what it means to be “under the influence” of a drug can depend on the offense. It can also depend on the state in which the alleged offense occurred.
Three Types of “Under the Influence”
States with criminal laws that prohibit being under the influence of drugs in any circumstance tend to fall into three categories. They can define being “under the influence” as:
- a trace amount of the drug being found in your body,
- some form of physical or mental impairment or influence, or
- any use of a controlled substance.
Many states fall into more than one category. These states allow for convictions for being under the influence of drugs in more than one way.
“Trace Amounts”
Nevada and Arizona are examples of states that require only a trace amount of a controlled substance for you to be considered under the influence. In Nevada, it is a crime to:
“knowingly… use or be under the influence of a controlled substance except in accordance with a lawfully issued prescription.”1
The Supreme Court of Nevada has decided that being:
“under the influence” of a controlled substance for this law required “only a trace amount of the substance or its metabolites.”2
In Arizona, taking even a negligible amount of a controlled substance breaks the law. A positive drug test can be used as proof of prior use.3
“Impairment”
Both New York and California law require some form of impairment or influence. This can be an appreciable influence on your:
- nervous system,
- muscles, or
- brain.
It can also be any detectable impairment in your mental or physical condition.4
In California, the influence of drugs does not have to make you misbehave or break a law for it to be illegal.5 However, in New York, the drug impairment has to be in public and must either:
- put someone in danger or
- annoy others in the vicinity.6
For example: Mario smokes a cigarette laced with PCP. He drives his car safely a few yards to park it in his driveway. A police officer approaches and asks if Mario is under the influence of a drug. Mario says he is. He is staggering and his speech is slurred. His eyes are glassy and his pupils are fixed and dilated. Mario is arrested. A blood test reveals the PCP. Mario gets convicted of being under the influence.7
“Drug Use”
Colorado,8 Arizona,9 Ohio,10 Utah,11 Nevada, and California all make it a crime to use a controlled substance. The statutes that prohibit being under the influence of drugs also include the mere use of them.
For example, California Health and Safety Code 11550 HS states that,
“A person shall not use, or be under the influence of any controlled substance…”12
This requires law enforcement to prove, beyond a reasonable doubt, that you took the substance a short time before your arrest.13 This does not require current use of the drug when you were arrested.
One court of appeals in California said that evidence of drug use within 48 hours of arrest was sufficient.14 Another California Court of Appeals said that, in some cases, up to 5 days ago could be sufficient.15 However, withdrawal symptoms indicated that the drug use happened too long ago to support a conviction.16
All of these states that prohibit the mere use of illegal drugs make an exception for taking prescription drugs under a valid prescription.
All states also forbid being under the influence in certain situations, like while driving a motor vehicle.
Different Definitions
Different criminal offenses can define “under the influence” differently. This can mean that, in a criminal case, you can be sufficiently “under the influence” of drugs for one charge, but not for another.
The most apparent example is the difference between:
- being under the influence of drugs and
- driving under the influence of them.
California Law
In California, for example, driving under the influence of drugs (DUID) is prohibited by Vehicle Code 23152(f) VC. You are under the influence of drugs if you can no longer operate the vehicle safely.
However, California also has a law that forbids being under the influence of drugs in non-driving situations. Health and Safety Code 11550 HS makes it a misdemeanor to “use, or be under the influence of any controlled substance.”17
Under this law, you are considered to be under the influence if you used a controlled substance that has either:
- created a detectable abnormal mental or physical condition, or
- appreciably affected your nervous system, brain, or muscles.18
This is a lower standard than what is required for a DUID. For a violation of HS 11550, the impact of the controlled substance on you only needs to be detectable.19 It does not need to be as specific or potent as what is required for a DUID conviction.
Some jurisdictions like Los Angeles no longer prosecute charges for merely being under the influence of drugs. Los Angeles police will rarely enforce HS 11550 unless another criminal law is being broken, as well.20
DUI is a crime in every state.
What is a controlled substance?
A controlled substance is any chemical composition that is regulated by law. It includes:
- marijuana,
- cocaine,
- opiates,
- Vicodin,
- hallucinogens,
- narcotic drugs,
- ecstasy,
- heroin,
- codeine,
- PHP, and
- methamphetamine.
Some of these substances are forbidden in all contexts. Others require a valid medical prescription to use.
States will generally have a statute that lists all of the drugs that are regulated by law.21 Most mirror the federal controlled substance list. This list is divided into 5 schedules. The schedules reflect the substance’s:
- accepted medical use,
- relative potential for drug abuse, and
- how likely it is to cause dependence if abused.
Schedule I
Schedule I drugs are substances with no accepted medical use and a high potential for abuse. Schedule I includes substances like:
- ecstasy,
- heroin, and
- LSD.22
Schedule II
Schedule II drugs have a high potential for abuse, but also have medical applications. Some examples are:
- OxyContin,
- fentanyl,
- morphine, and
- Ritalin.23
Schedule III
Schedule III drugs are less likely to be abused or create an addiction than Schedule I or II drugs. Some examples are:
- Tylenol with codeine,
- ketamine, and
- anabolic steroids.24
Schedule IV
Schedule IV drugs have a low potential for drug abuse and are frequently used to treat medical conditions. Examples include many common prescription medications, like:
- Xanax,
- Valium, and
- Restoril.25
Schedule V
Finally, Schedule V drugs have little potential for abuse, and are used to treat common medical problems. Examples include:
- Robitussin AC cough syrup,
- Lyrica, and
- Nalex AC.26
Penalties
Most states like California treat being under the influence as a misdemeanor offense. Convictions for drug charges carry up to 1 year of jail time in county jail. However, these charges frequently come with other drug crimes, like:
- possession of a controlled substance,
- drug paraphernalia, or
- DUI charges.
These other drug offenses can carry additional penalties.
In many states, a drug diversion program is available if you are a first-time offender. These programs will keep you out of jail and focus on:
- community service,
- rehabilitation,
- drug treatment programs, and
- drug counseling.
If you have prior convictions on your criminal record, you may not be eligible, especially if they were for possession of drugs.
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:
- Nevada Revised Statutes 453.411.
- State v. Jones, 895 P.2d 643, 644 (1995).
- State v. Olea, 897 P.2d 1371 (Ariz. Ct. App. 1995).
- CALCRIM No. 2400.
- People v. Enriquez, 42 Cal.App.4th 661 (1996).
- New York Penal Law 240.40.
- Facts from People v. Enriquez, supra.
- Colorado Revised Statute 18-18-404(1)(a).
- Arizona Revised Statute 13-3408(a)(1).
- Ohio Revised Code 2925.11(A).
- Utah Code 58-37-8(2)(a)(i).
- California Health and Safety Code 11550(a) HS.
- CALCRIM No. 2400, supra.
- People v. Jones, 189 Cal.App.3d 398 (1987).
- People v. Velasquez, 54 Cal.App.3d 695 (1976).
- People v. Gutierrez, 72 Cal.App.3d 397 (1977).
- California Health and Safety Code 11550(a) HS, supra.
- CALCRIM No. 2400, supra.
- People v. Canty, 32 Cal.4th 1266 (2004).
- LADA Special Directive 20-07.
- See, for example, California Health and Safety Code section 11054 and 11055 HS and Colorado Revised Statute 18-18-102(5).
- 21 CFR 1308.11.
- 21 CFR 1308.12.
- 21 CFR 1308.13.
- 21 CFR 1308.14.
- 21 CFR 1308.15.
