Updated: Dec 11, 2020
In California, it is a crime for a homeowner to allow another person to engage in drug use or drug sales at the homeowner’s house…even if the homeowner is not personally engage in drug use or drug sale. This crime is known as operating a drug house. This article serves as a brief overview of the law, the penalties, and the defenses that are related to this common crime.
HS 11366 Law
For starters, the crime of operating a drug house is defined at California Health & Safety code section 11366 (HS 11366). HS 11366 states: Every person who opens, or maintains, any place for the purpose of unlawfully selling, giving away, or using any controlled substance…which is classified as a schedule III, IV, or V, is guilty of operating a drug house (HS 11366 paraphrased).
Note: A controlled substance classified as a schedule III, IV, or V drug includes, but is not limited to, the following common illegal drugs: morphine, meth, oxycodone, methadone, anabolic steroids, codeine, hydrocodone, alprazolam (Xanax), carisoprodol (Some), diazepam (Valium), lorazepam (Ativan), and more.
Drug House Defined: A drug house does not need to be an actual home or residence under HS 11366. According to the law, a drug house can include a hotel or motel room, a mobile home, an apartment, a business location, etc.
In order for the defendant to be found guilty of Operating a Drug House pursuant to HS 11366, the district attorney must prove all of the following elements beyond a reasonable doubt:
The defendant opened, maintained, allowed, or rented a place, such as a house, hotel room, warehouse, etc., where the defendant purposefully and knowingly used, sold, gifted, or allowed drug use or drug sales to occur,
The defendant had the right to control whether or not drug sales or drug use occurred in the house, hotel room, business, etc.
The defendant allowed drug use, drug transactions, or drug sales on the premises on a repeated or continuous basis (Calcrim 2440 relating to HS 11366 paraphrased).
Note: Opening or maintaining a home, motel room, etc., for personal drug use is not the same as operating a drug house. In order for the defendant to be found guilty of operating a drug house the defendant must have allowed drug use, drug transactions, or drug sales, between the defendant and another person or between two other persons not including the defendant. Personal drug use in the defendant’s home, business, hotel room, etc., without more, is not a violation of PC 11366; however, personal use of a controlled substance could be a crime under related drug crimes (See below).
In addition, in order for the district attorney to prove that the defendant is guilty of operating a drug house the district attorney must prove that the defendant allowed repeated drug use, drug transaction, or drug sales on the property. For example, if the defendant allows occasional drug use by other person on his property then the defendant is not guilty of HS 11366. What constitutes repeated or continuous drug use, drug transactions, or drug sale at a location is determined on a case-by-case basis, but daily transactions of controlled substances at a particular location is most likely considered repeat or continuous drug transactions.
HS 11366 Penalties
The crime of operating a drug house is classified as a wobbler in California. A wobbler crime means that the criminal charge may be filed as a felony crime or alternatively as a misdemeanor crime. When HS 11366 is charged as a felony crime the defendant could face up to sixteen month, two, or three years in prison upon conviction; when 11366 is charged a misdemeanor crime the defendant could face up to one year in the county jail.
Note: Probation is allowed in both felony and misdemeanor HS 11366 cases; however, probation is not guaranteed. A probation sentence is period of supervision that is monitored by either a felony probation officer (felony HS 11366 cases), or by the court (misdemeanor HS 11366 cases). Whether or not a defendant is allowed to serve his or her prison or jail sentence alternatively as a period of supervision (probation) depends on the egregiousness of the facts surrounding the criminal charge, the defendant’s criminal history, the harm inflicted upon victim(s), if any, and other circumstances.
Also, when a defendant is incarcerated on a felony conviction of HS 11366, as opposed to serving a probation sentence, the defendant length of incarceration depends on the circumstances of the case, the disposition of any plea agreement between the defendant and the district attorney, the defendant’s criminal history, and more.
PC 1170(h) Sentencing: The crime of operating a drug house is not covered under PC 1170(h) sentencing. This means that if the defendant is convicted of felony HS 11366, and he or she is not granted probation, then the defendant must serve his or her incarceration in a California state prison, as opposed to serving that incarceration in a local county jail. In addition, a felony prison sentence for HS 11366 convictions may not be split (served partially out of prison on work release or house arrest) or suspended (not served unless the defendant violates a term of probation).
Three Strikes Law: The crime of operating a drug house is not considered a strike offense, as defined under California’s Three Strikes Law.
CIMT: The crime of operating a drug house is considered a crime involving moral turpitude (CIMT). A crime involving moral turpitude means that the crime involves deceit or is otherwise considered morally wrong. A conviction for a CIMT carries harsher collateral punishments than a non-CIMT. This includes possible penalties and loss of rights related to immigration concerns, military enlistment rights, and employment opportunities for licensed professional (i.e. doctors, dentist, lawyers, therapists, teachers, nurses, etc.).
Conduct Credit: If the defendant is incarcerated for a conviction of HS 11366, or the defendant is alternatively ordered to serve work release as part of a probation sentence related to a conviction of HS 11366, then the defendant is entitled to earn up to fifty percent off the incarceration or work release time for good behavior (good conduct) while serving his or her sentence; this applies to both misdemeanor and felony convictions for operating a drug house.
Property Forfeiture: Any property owned by the defendant, other than the defendant’s sole residence, may be forfeited, if it is proven by the district attorney that the defendant used his or her property to operate a drug house (HS 11366). There are a few exception to this forfeiture rule, such as where the defendant is co-owners with innocent parties, or where the drug house is actually a family residence to innocent third parties.
Fines and Fees: A criminal conviction for HS 11366 can subject the defendant to fines and fees. These fines and fees are in addition to any restitution that might be granted to victim(s) that suffered financial harm as a result of the defendant’s criminal conduct. As of 2020, the fines related to misdemeanor HS 11366 equal up to $1,000; the fines related to felony HS 11366 equal up to $10,000. These fines are in addition to restitution, if any, and any related court fees, such as booking fees, probation monitoring fees, etc.
Bail: Bail is amount of money or property that is staked with the court that is intended to serve as assurance of the defendant’s appearance in court if the court is willing to allow the defendant to remain out-of-custody during the criminal proceeding. The production of bail is not necessarily a punishment related to HS 11366 but we added the bail information here as it is certainly relevant to the overall potential cost of an arrest for HS 11366. The scheduled bail amount for misdemeanor HS 11366 is $5,000 (misdemeanor), or $25,000 (felony) [San Bernardino County 2020]. The amount can be lowered or raised by a judge after the judge has considered the defendant’s danger to the community and flight risk (among other factors) if the defendant is allowed to remain out of custody during the criminal proceeding.
In addition to the penalties listed above, if the defendant is found guilty of operating a drug house the defendant could face any of the following additional punishments: denial of entry into the armed services (Army, Navy, Air Force, Space, Force, Marines, Coast Guard), criminal protective orders (CPO) to protect innocent victims, such as innocent third party co-owners of property where the drug use was allowed by the defendant, loss of firearm rights (for felony HS 11366 convictions), and more.
HS 11366 Defenses
No two crimes are exactly alike, therefore, no two crimes will be treated exactly the same as far as how a criminal defense attorney approaches the defense to a charge of operating a drug house. With that said, common defenses to HS 11366 usually include: Entrapment, police misconduct with search and seizure rights, lack of evidence that the defendant knew drugs were being used at his or her residence, occasional drug use at the drug house (as opposed to repeated and continuous use), personal use of drug by the defendant (as opposed to joint drug use between the defendant and another person or two or more persons not including the defendant), statute of limitations (one year for misdemeanor HS 11366 allegations and three years for felony HS 11366 allegations), coerced confessions, duress, and more.
In addition to the traditional and common defenses listed above, it might be possible to have the defendant’s criminal charges reduced from felony charges to misdemeanor charges, with or without the district attorney’s approval. Moreover, some drug crimes might be eligible for diversion, which is a type of defense whereby the defendant’s criminal charges are diverted (avoided) so long as he or she agrees to, and successfully completes, probation-like terms. Whether or not these non-traditional defenses are available in any criminal charges of operating a drug house depends on many factors, including a possible agreement between the district attorney or the court and the defendant (plea agreement), the facts of the case, the defendant’s criminal history, and more.
Related Crimes: Sometimes, HS 11366 crimes may be avoided for lack of sufficient evidence required to prove the case, yet, evidence of related drug crimes remains strong. In HS 11366 cases, this remaining evidence tends to support criminal charges of any of the following:
Possession of Drug Paraphernalia (HS 11364)
Loitering for Drug Activity (HS 11530)
Possession of a Controlled Substance (HS 11350)
Possession with Intent to Sell a Controlled Substance (HS 11351)
Sale of Transportation of a Controlled Substance (HS 11352)
Cultivating Marijuana (HS 11358), and more
To learn more about the crime of operating a drug house, also called maintaining a place to use or sell a controlled substance, contact our drug defense lawyers today for a free consultation. Our experienced lawyers have successfully handled hundreds of drug cases in San Bernardino County and there is no charge to discuss your case, and possible defense options, with one of our criminal defense lawyers. Call today!