Drug and Criminal Defense in San Diego
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Can I be arrested if someone uses drugs in my house?

If you have a residence or other place where a controlled substance or narcotic – methamphetamine, marijuana, heroin, cocaine, oxycodone etc. – is found during an arrest, oftentimes, the district attorney will file charges of HS 11366.

HS 11366 essentially states that every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance, may be punished in county jail or state prison.

To establish that someone is guilty of this charge, the District Attorney must establish the following:

  1. The person opened or maintained a place; and
  2. the person opened or maintained the place with the intent to sell, give away, use, or allow others to use a controlled substance or narcotic drug on a repeated basis.

HS 11366 is often alleged when someone is charged with other drug related crimes and drugs are found in the residence; for example, possession for sales, HS 11378, HS 11378.5, HS 11351, or HS 11351.5. Simple possession, HS 11350 and HS 11377, can also be alleged if the district attorney believes the place was opened or maintained with the purpose of using drugs.

HS 11366 is a "wobbler," which means it can be alleged as a misdemeanor or felony under California law. This has important ramifications with respect to the consequences someone will face if convicted.

Potential Defenses:

Drug cases are often the product of a search. Therefore, the legality of the search will be the first issue to address. That is, was the search conducted with or without a warrant? If there was a warrant, did it satisfy the statutory requirements pursuant to penal code section 1526? If the search was conducted without a warrant, was there a warrant exception – automobile search, Search Incident to a Lawful Arrest, emergency, etc. The search is only one potential defense. Inevitably, there will be more defenses applicable as more information is gathered on your case.

If you have been arrested or charged with HS11366, contact my office today. I will provide free, confidential consultation.