By: Diana Aizman
Vicodin is the brand name for hydrocodone, a popular narcotic pain medication that is a Schedule II controlled substance in its pure form. Schedule II drugs have a current medically accepted use but also a high potential for abuse and dependence.
When Vicodin is combined with other drugs, which it commonly is when prescribed, possessed or sold, it is not as dangerous and its designation is dropped to a Schedule III controlled substance. These drugs also have a current medically accepted use but with a moderate to low risk of physical dependence and a high psychological dependence if abused.
Vicodin is often prescribed for pain relief including toothaches, whiplash, aches and pains from an accident or fall or other complaints of pain. It is also used to suppress coughs. It is combined with acetaminophen, a non-narcotic pain reliever, when prescribed.
Side effects include:
- Mood changes
- Blurred vision
- Trouble breathing
Use of Vicodin can also impair thinking and judgment when operating a motor vehicle or machinery. To abusers, its appeal lies not only in its pain suppressing qualities but in its euphoric inducing feature. Hearing impairment and permanent loss of hearing can occur in those who take it long term or from chronic overdosing.
The possession of any controlled substance is unlawful, unless you possess in the case of Vicodin or Hydrocodone a valid prescription. If you possess Vicodin that was prescribed to someone else, you are in violation of this code section. Additional violations include having multiple prescriptions of the drug or possessing more than what was prescribed to you.
The elements of possession include:
- You were in actual or constructive possession thorough yourself or another person (had control over or the right to control it)1,
- Of a controlled substance,
- And you knew or were aware of the presence of the drug and of its nature2,
- And that you possessed a sufficient quantity of the drug to be used as a controlled substance3
Violation of 11350 HS is a felony, which carries 16 months, 2 or 3 years in state prison and a fine up to $20,000.
If you possess a certain quantity of a controlled substance, you run the risk of being charged with possession with intent to sell4. Should you purchase or attempt to purchase a large quantity, you could also be charged under 11351 HS, a felony. Possession with intent to sell a controlled substance is always a more serious charge than simple possession.
Drug addicts often possess large amounts of the drug they are abusing so long as they have the resources, but law enforcement or the DA can also point to other factors evidencing your intent to do more than just possess the drug for your own use. Those engaged in dispensing or selling drugs will have scales, baggies, large amounts of cash on hand, cutting instruments or other substances used to mix in a pure form of the drug to dilute it so that more of it can be sold. If you are arrested with such items in your house or place of business, you will likely be charged with possession for sale.
A violation of 11351 HS is a felony with state prison time of 2, 3 or 4 years and a fine up to $20,000. If convicted, you are not eligible for deferred judgment or any other diversionary disposition.
Even more serious is selling hydrocodone or carrying or transporting it. Transporting and selling are broad terms for purposes of this law but the code section also includes administering it to anyone directly who then ingests or inhales the drug or merely giving it away5. You can also be convicted under this code section if you are with someone whom you are aware is in possession of the drug and you are driving them in a motor vehicle.
Conviction of this felony carries 3, 4 or 5 years in state prison and a fine up to $20,000.
There are aggravating factors under this code section that can substantially increase your state prison time:
- You have a prior conviction for transportation or sale (results in a consecutive 3-year term for each prior felony conviction)
- The person to whom you were selling, furnishing, giving or administering was:
- Has a prior violent felony conviction
- Was being treated for a mental condition, disorder or for addiction
If any of these factors are present, you face the maximum sentence or 5 years in state prison.
If you sold to, gave or administered the drug to a minor, or used a minor to transport or sell a controlled substance, you face conviction under 11353 HS and 11353.1 HS, which carries 3, 6 or 9 years in state prison6.
Should you face a charge of possession of Vicodin or hydrocodone under 11350 HS, you may be eligible for any of California’s diversionary programs under Proposition 36 and Penal Code 1000 or participation in California’s drug courts. These programs enable a drug offender with a charge of possession to have their charges dismissed or at least face a sentence other than incarceration7.
You may qualify for diversion if you meet the following criteria:
- No prior possession conviction with intent to sell
- No serious probation or parole violations
- No participation in a drug diversion program within 5 years of the current offense
- No prior felony convictions within 5 years of the current offense
PC 1000 is a deferred judgment disposition where you enter a plea of guilty with further proceedings deferred for up to 3 years so you can complete an approved drug treatment and meet any further conditions. This typically means not committing any further criminal offenses and passing all drug tests. During the course of your treatment, progress reports are periodically submitted to the court. Once you complete your treatment and the court is satisfied regarding your rehabilitation and intent to not recidivate or continue abusing drugs, the court will dismiss the charges.
Proposition 36 was targeted towards defendants with drug possession charges accompanied by a violent or serious felony8. You still plead guilty to the underlying charge with further proceedings deferred except that you are under formal probation and any conditions imposed by the court. Completion of your treatment program does not guarantee the court will dismiss the charges but it is unlikely you will spend any time incarcerated so long as you are successful.
California drug courts are another option. You still must have no past record of possession with intent to sell, no previous felony convictions in the past 5 years and no participation in a previous diversionary program within this time. Drug courts may use their own programs and customize conditions to your situation with the goal of ending your addiction or dependence.
You must appear in court when ordered. A probation officer usually reports on your progress and attempts to find work, attend school or rehabilitate yourself. Once the court is satisfied regarding your progress, it will dismiss the underlying charge.
An element of any drug possession charge is that proof that you knew or were aware of the presence of the drug on your person or that it was within your control, which can include its possession by another person who may trying to sell it at your direction. You must also have been aware of the nature of the drug. This could include proof of a prior possession charge or any furtive movement or conduct you made when approached by police, demonstrating that you knew you were in possession of a controlled substance.
If you were wearing a coat or driving a car that someone else had access to, you could allege that another person placed the drugs there.
If you are arrested and have no drugs on your person but someone with you did, you could be arrested for possession as well. However, mere proximity to an illegal substance is not sufficient to convict you without more.
The DA can attempt to convict you for intent to sell based on the quantity of Vicodin you possessed. However, drug experts can testify that large quantities are not unusual for persons who fully intended to possess the drugs for their own personal use. So long as no evidence of your intent to sell, such as the presence of scales, baggies or having been observed by law enforcement to have had a high number of visitors to your house at all hours who left shortly after arriving, you may be able to negotiate a lesser charge or be found not guilty of intent to sell.
Entering a plea to drug possession can make you eligible for any of California’s drug diversion programs.
All citizens have a right to be secure in their homes, cars and businesses from unreasonable searches and seizures. Generally, you or your home or car may not be searched without a search warrant although there are numerous exceptions to this requirement. For instance, you may be subject to a limited pat down search for weapons if detained on the street but only if the officer had a “reasonable belief based on specific articulable facts which, taken together with the rational inferences to be drawn from those facts reasonably warranted the officer into believing that (you) (are) dangerous and may gain immediate control of weapons”9. This is a standard that is less than probable cause to arrest someone.
If arrested, officers may search your person for weapons and contraband and your immediate area for safety purposes, but may not conduct a full-fledged search without a search warrant.
Of course, if the officer observes a drug or other contraband in plain sight, it may be validly seized.
If you are arrested, then you are subject to a search of yourself and an allegedly limited search of the immediate area for weapons as well10.
However, it is not that unusual for an officer to violate your rights by forcing you to submit to a search or by thoroughly searching a person, home or car who is suspected of a crime absent probable cause to do so or pursuant to a warrant.
If you are stopped for a traffic violation, your car may not be searched unless the officer has probable cause to believe you are carrying controlled substances in your car, weapons or other evidence of a crime, usually by it being in open view11.
In other cases, a search warrant is required. Search warrants are not open-ended. They limit the extent, place, time and scope of the search. If the warrant is to search your home, officers may not use it to search your place of business
You can seek post-conviction relief by obtaining an expungement of your conviction under Health and Safety Code 11350 by petitioning the court pursuant to Penal Code 1203.4. By expunging your conviction, you can state under oath that you have not been convicted of that offense.
Your expunged conviction will also not appear on any pubic record databases so that any landlords or private employers will see no criminal convictions on your record.
Any expungement, however, does not abolish or erase your conviction record as it remains accessible to government agencies if you are seeking public employment or service with the military. The court also can use your expunged conviction to enhance your sentence if you commit a subsequent felony offense.
Although you can safely state under oath on a private employment application or rental application that you were never convicted of a crime, you do have an obligation to disclose it for any felony or misdemeanor (if asked) that was expunged if you:
- Apply for a professional license
- Apply for public employment—court, law enforcement, military, state or federal agency
- Apply as a public school teacher or administrator
- Apply for a firearm (any felony conviction renders you ineligible as do some misdemeanor convictions regardless if expunged)
- Apply for public office ( felony expungement )
Your failure to disclose your expungement will disqualify you from consideration for licensing or employment and you could face perjury charges.
The following links have information on the criminal court process in a misdemeanor:
If you have been arrested and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending vicodin case with an attorney contact the Aizman Law Firm at 818-960-6197 for a free confidential consultation.
- People v. Barnes (1997) 57 Cal.App.4th 552,556 [↩]
- People v. Horn (1960) 187 Cal.App.2d 68, 74-75 [↩]
- People v. Rubacalba (1993) 6 Cal.4th 62,65-67 [↩]
- People v. Parra (1999) 70 Cal.App.4th 222,226 [↩]
- People v. Emmal (1998) 68 Cal.App.4th 1313, 1316 [↩]
- People v. Montalvo (1971) 4 Cal.3d 328,332 [↩]
- People v. Wheeler (2005) 127 Cal.App.4th 873,879 [↩]
- People v. Sharp (2003) 112 Cal.App.4th 1336,1338 [↩]
- Terry v. Ohio (1968) 392 U.S. 1 [↩]
- Arizona v. Gant ( 2009) 556 U.S. 332, 351 [↩]
- U.S. v. Long (1983) 463 U.S. 1032, 1049 [↩]