No, not by itself. California’s law on visiting or being present where drugs are used, Health and Safety Code section 11365, applies only to someone who aids, assists, or abets the unlawful smoking or use. It does not apply to a person who is simply present and aware that drug use is happening nearby.
What the statute actually requires
Section 11365 makes it unlawful to visit or be in a place where certain controlled substances are being unlawfully smoked or used, with knowledge that this is happening. Read alone, that could sound like knowledge plus presence is enough. Subdivision (b) narrows it: “This section shall apply only where the defendant aids, assists, or abets the perpetration of the unlawful smoking or use” (Health and Safety Code section 11365(b)). The statute remains in force; it was last amended in 1991.
California’s jury instruction for this charge, CALCRIM No. 2401, lists five things the prosecution must prove:
- You “willfully and intentionally” visited or were present in a place where someone else was smoking or using a controlled substance.
- You knew the other person intended to smoke or use it.
- You intended to aid and abet the other person in smoking or using it.
- You “did or said something that did in fact aid and abet” the other person.
- You knew your words or conduct aided and abetted the other person.
The instruction defines aiding and abetting as knowing of the other person’s unlawful purpose and specifically intending to, and actually doing something to, “aid, facilitate, promote, encourage, or instigate” the crime. When there is evidence that a person was only present, jurors are told they may consider presence, or a failure to prevent the crime, but that it “does not, by itself, make him or her an aider and abettor” (CALCRIM No. 2401).
Where this rule comes from
The limit traces to People v. Cressey (1970) 2 Cal.3d 836. The California Supreme Court considered the same “visit or to be in any room or place” offense under its earlier number, former Health and Safety Code section 11556. It recognized that a literal reading could reach people with no connection to the drug use, such as a moviegoer who notices someone smoking marijuana, and it repeated an 1873 rule that a person who “did not act to aid, assist, or abet” a crime is not guilty merely because he was present and knew of it.
Cressey did not stop there. The court said that in your own residence or car you “may have the responsibility to prevent the use of the narcotic” because you have some control over the place, and it upheld the conviction of a defendant who controlled the apartment where marijuana was being used. Today’s section 11365(b) states that its aiding-and-abetting limit is “declaratory of existing law as expressed in People v. Cressey.”
How this differs from a maintaining a place charge
A related but separate offense, maintaining a place for drug sales or use, requires that you controlled or maintained the location itself, not merely visited it. That is a different, more serious charge with its own elements and defenses. Section 11365 can reach a visitor with no control over the location at all, but only if that visitor actually aided or abetted the drug use rather than just being there.
A separate risk worth knowing about
Section 11365 is not the only way that being near drugs can create legal exposure. If you have some control over the location, such as your own car or home, prosecutors may instead argue constructive possession of the drugs themselves, a different legal theory based on control rather than on helping someone else use drugs. That separate risk is discussed on the firm’s California drug possession FAQ. Keep the two theories apart: one concerns aiding another person’s drug use, the other concerns your own control over the drugs.
If you are charged under section 11365
This offense is listed among the charges Penal Code section 1000 pretrial diversion applies to, so it may qualify for diversion if that statute’s other conditions are met. More on the program is on the firm’s PC 1000 drug diversion page.
What matters if you are questioned or charged
Because the aiding and abetting element is what separates a lawful visit from a crime, the facts that bear on it include:
- What you actually said or did, not just where you were standing.
- Whether you provided anything used in the smoking or use, such as a lighter, pipe, or rolling papers.
- Whether the place was your own home or car, or someone else’s.
- How an officer’s report characterizes your conduct: passive observation versus active help.
- Who else was present, and what they say happened.
- How long you stayed, and whether you left once the activity began.
Talk to a lawyer before making any statement to police about what you or anyone else knew or intended. Those statements often go directly to the elements above.
If you were present where others were using drugs and are now facing a charge, the Law Offices of David S. Chesley can review the police report and the specific conduct alleged against you. Call (800) 755-5174 to discuss your situation.