I. HS 11366: Operating a Drug House Laws

Legal Definition: Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance…shall be punished by imprisonment.

 For a person to be convicted of a violation of HS 11366, the prosecution must show that:

1. You opened and maintained a place;
2. You had opened this place with the intent to sell, give away, or allow others to use a controlled substance/narcotic drug;
3. You did so on a continuous basis.

II. What does this mean?

Under this code section, a place is a house or apartment, but it doesn’t necessarily have to be. In limited circumstances, a hotel can be used for these purposes, so long as the selling was done continuously from this place. This charge only applies to people who are opening the establishment for others to come and go and for drug purposes. If you own a home to where you consume controlled substances, it would not be considered a drug house, but rather it would be simple possession of the drug you were using at your home.

This criminal section also requires that the reason you opened and maintained the place was for the purposes of others to come and go and use drugs. Therefore, if you have a reason to run a home, and the purpose is not for the intent to be involved with narcotics, that can act as a defense in your case. It is a specific intent crime that the prosecution must prove. Any other logical and valid reason for your opening of the place can act as a defense against this charge. Specific Intent crimes mean actual intent to perform some act, along with a want for the consequences that result from that act. You also need drug activity to be continuous. If police stop you on your first night trying to sell, give away, or allow others to use narcotics, then that would not be enough to be continued under this section. It requires people going in and out and generally happens with police sting operations to be able to prove this element.

III. Penalties

Under this code section, HS 11366 is a wobbler offense, which means you can be charged under this section as a misdemeanor or as a felony. Whether you are charged under this section as a misdemeanor or a felony, depends on the specific facts of your case, such as the amount of people and drugs found at your residence, how often this has been happening, and your prior criminal history. If you are convicted under this section as a misdemeanor, you can be sentenced to up to one year in County Jail. If you are convicted of this section as a felony, you could be sentenced to State Prison for upwards of 16 months, 2 or 3 years. You would be required to serve at least 50% of that time in custody. You can also be subjected to fines ranging from $1,000 to $10,000, depending on whether it is a misdemeanor or a felony charge.

Because this is a crime of drug possession and sales, it would be considered a crime of moral turpitude, that would affect people’s Immigration status as well as their Professional Licenses. However, it is not a Strike offense under the California Three Strike Law. It is also not a sex crime requiring Sex Registration under PC 290.

IV. Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Violation of Rights

A common defense can be found in attacking the purposes for maintaining the residence. If you were to own a home, and rent rooms to others, with the primary purpose of the home to be for room rentals, then that primary purpose would not be for it to be a Drug House. If residents of your home are selling or doing drugs, and you are unaware of their use, then you cannot be shown to have Specific Intent to have a Drug House. A requirement is to have knowledge of what your residences are doing, and that you are participating in their narcotic work, to be found guilty here. Failing to do so would show insufficient evidence of guilt against you in this case.

Another defense can be if police violate your rights under the Fourth Amendment. If police were to simply enter your home without a valid search warrant, then that could be challenged by your Ontario Criminal Defense Attorney, thus having your case thrown out of Court. This also applies if police search an area with a warrant that does not include that area within their search warrant. These are violations of your rights and you can challenge them with your Attorney under PC 1538.5.

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