Maintaining a Facility or Open Space for Drug Activity

What are the definitions of maintaining a facility/space for drug activity?

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance which is:

(1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (13), (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b), (c), paragraph (1) or (2) of subdivision (d), or paragraph (3) of subdivision (e) of Section 11055, or (2) which is a narcotic drug classified in Schedule III, IV, or V.

What kinds of drugs are listed to be associated under HSC 11366?

The references to drugs under Health and Safety Code 11364 HS are:

(1) Opium;
(2) MDMA;
(3) Mushrooms;
(4) Psilocybin;
(5) Fentanyl;
(6) Peyote;
(7) Meth;
(8) Mescaline;
(10) GHB;
(11) Opium extracts such as CO2 base, derivates like crumbles;
(12) PCP;
(13) Ketamine;
(14) Testosterone;
(15) Cocaine; and
(17) Heroin.

What is the mental state as required under Health & Safety Code 11366?

The mental state required is knowingly.

Knowingly is a conscious understanding of the environment, the nature of the act, and the surrounding effects and consequences of the steps utilized to achieve the result.

Therefore, a person must be aware of the use of the listed categories of drugs under Health and Safety Code 11364. And have a purpose to create an economy, social gathering or business associated with the use, experimentation of the listed drugs, by the creation of a facility, room, or open space, and being objectively aware of the natural and probable consequences associated with this directive.

Are there any exceptions to a violation of Health and Safety Code 11366 HS?

Yes. If the facility, room, or open space is utilized for a single act, rather than a continuance purpose there can be no establishment of motive or intent of purpose to qualify for a violation of Health and Safety Code 11366 HS because it indicates that the facility, room, or open space, without more, was unlawful acquired without consent by the owner of the premises.

Health and Safety Code 11366 HS – Sentencing 

What are the penalties for a violation of Health and Safety Code 11366 HS?

A violation of Health and Safety Code 11366 HS is a felony. Penalties include confinement not exceeding 1 year in prison, with fines and fees not exceeding $10,000 dollars.

What are examples of a violation of Health and Safety Code 11366 HS?

1. The A club is a private club that is frequented by several employees of well-known Entertainment Companies. The club is founded by charter and self-funding. There is no security in the front, but access to the club is a key card. The building is dressed up with opaque black windows that make it impossible for anyone to see in the facility. To acquire membership, you must fill out an application. Membership is exceedingly difficult to attain and desired. A police officer was driving by the A Club and witnessed a woman in a suit open the door and throw-up in front of the door. The officer stopped to assist the female and saw in her vomit several pills and clots of yellow clumps resembling speed. The officer used the woman’s card to gain access, and observed several people enjoying alcoholic drinks, snorting cocaine, and exchanging cocaine for cash. The officer called for assistance and everyone in the club was arrested. In exchange for leniency, the bartender implicated the manager. The manager, the staff and members present were arrested.
2. Dale and Dan enjoyed hanging out with their friends all summer before college. They all enjoyed crushing Clozapine pills in their liquor glasses and playing video games all day. Their parents did not mind, as the parents thought it was a fantastic way for the guys to blow off steam prior to entering college. They all had a routine schedule. Dale would host for 3 days, and Dan would host for the remaining 4 days. This was the routine for 3 months. During this time, they would stay stoned, listen to music, and play video games. They lived in a residential suburb. On this occasion, everyone was at Dan’s parents’ house. One of their neighbors got tired of seeing them do nothing and called the police. The police arrived and knocked on the door. One of the kids, not Dan, was too stoned to verify the knock, and opened the door. The police entered the home to see a group of guys playing video games drinking liquor for glasses. The police also observed a coffee table with a glass top caked with Clozapine residue on top of the glass next to four bottles of liquor. The police verified that the Clozapine prescriptions came from Dan’s parents who were psychiatrists. The prescription script was still on the large container holding Clozapine. Dan, his friends, and Dan’s parents were arrested.

Health and Safety Code 11366 HS – Defenses 

What are examples of defenses to a violation of Health and Safety Code 11366 HS?

• Lack of probable cause
• No plain view
• No exigency
• No consent
• Mistake in law
• Single gathering- lack of intent or mental state
• Mistake in Fact
• Substances are novelty not drugs- placebo
• Duress

Need More? 

If you are charged with a violation of Health and Safety Code 11366 HS call Law Mart.