79 Devine Street, Suite 100, San Jose, CA 95110


Can I Get Arrested for Being High?

 Posted on February 09, 2024 in Criminal Defense

CA defense lawyerIn most states, people can only be arrested for drug crimes if they are caught in possession of a controlled substance. California is not like most states in that regard. You do not need to actually have a controlled substance in your possession to get in trouble for drug activity. Simply being found under the influence of an illicit substance is enough to get you arrested and charged with a misdemeanor drug offense. This law is designed to address the social issues that can come with a large number of visibly inebriated people in public spaces. While many drug users can function fairly normally while high, many others create public disturbances or pose a danger to the public. This law enables the police to arrest anyone they encounter who seems to be under the influence of an illegal substance, such as heroin or methamphetamine. If you are charged with being under the influence, a San Jose, CA, criminal defense attorney can help. 

How Can the Police Tell Whether a Person is Under the Influence of Illicit Drugs?

Unfortunately, even highly trained police officers cannot always tell whether someone is under the influence of drugs or suffering from a medical or mental health issue without a drug test. Many mental illnesses and some physical health issues, such as a stroke or very high blood sugar, can mimic the effects of narcotics. To find out whether a person is high or simply sick, the police generally must place them under arrest and take them to the police station or hospital to be drug tested.

This brings up another issue. Many people who struggle with mental illnesses also use drugs as a way of coping with their symptoms. A simple drug test usually cannot tell the court whether a person is actively under the influence or has simply used drugs within the past week or so. It is not a crime to have been high a week before getting arrested when you might not have even been in California - you must be actively under the influence at the time of arrest to be convicted of this offense. 

Penalties for Being Under the Influence

Being under the influence is a misdemeanor, so you cannot be sentenced to more than a year in jail for it. However, courts often prefer to use probation and mandatory substance abuse treatment in lieu of jail time, especially if you have no or only very minor prior convictions. Most people arrested for this offense struggle with addiction and need help, not punishment. 

Contact a San Jose, CA, Criminal Defense Lawyer

Fuller Law Firm is committed to helping people who have been arrested due to substance abuse issues. Cory Lee Fuller, an experienced Santa Clara County, CA, criminal defense attorney will work to help you get a second chance. Contact us at 408-234-7563 for a complimentary consultation.

Share this post:
Back to Top