Can I Get Arrested for Being High?

 Posted on January 28, 2026 in Criminal Defense

In most states, people can only be arrested for drug crimes if they are caught with drugs. California is not like most states in that regard. You do not need to actually have a drug on you to get in trouble for drug activity. Simply being found under the influence of an illegal substance is enough to get you arrested and charged with a misdemeanor drug crime in 2026.

This law is supposedly meant to help with the problems that can happen when lots of visibly drunk or high people are in public spaces. And to be fair, even though many drug users can function normally while high, many others create public disturbances or pose a danger to the public. 

Unfortunately, the law doesn’t stop bad actors from behaving badly in public and it does allow the police to arrest anyone who seems to be under the influence of an illegal substance, such as heroin or methamphetamine. If you are charged with being under the influence in 2026, a San Jose, CA, criminal defense attorney can help.

What Does California Law Say About Being Under the Influence?

California Health and Safety Code Section 11550 makes it illegal to be under the influence of a controlled substance. The law specifically states that it is illegal for anyone to use or be under the influence of any illegal drugs, including heroin, cocaine, and methamphetamines. The statute does not say that you must have the drug at the time of arrest. Simply being intoxicated by the drug is enough to face criminal charges.

To convict someone under this statute, the prosecution must prove that the person willingly used a controlled substance and that they were under the influence of that substance at the time of the arrest. The prosecution does not need to prove that the person had any drugs on them or that they intended to commit any other crime.

How Can the Police Tell Whether Someone is Under the Influence of Illegal Drugs?

Even highly trained police officers can’t always tell whether someone is under the influence of drugs or suffering from a medical or mental health issue without a drug test. Many mental illnesses and some health issues, such as a stroke or very high blood sugar, can mimic the effects of drugs. 

To find out whether a person is high or simply sick, the police sometimes have to arrest them and take them to the police station or hospital to be drug tested. This brings up another issue: Many people who struggle with mental illnesses also use drugs as a way of coping with their symptoms. A simple drug test usually cannot tell the court whether a person is actively under the influence or has simply used drugs within the past week or so. 

It is not a crime to have been high a week before getting arrested when you might not have even been in California. You must be actively under the influence at the time of arrest to be convicted of this offense. Drug tests can’t always tell the difference. 

Penalties for Being Under the Influence in California

Being under the influence is a misdemeanor, so you cannot be sentenced to more than a year in jail for it. However, courts often prefer to use probation and mandatory substance abuse treatment in lieu of jail time, especially if you have no or only very minor prior convictions. Most people arrested for this offense struggle with addiction and need help, not punishment.

Defense Strategies for Drug Crime Charges

If you are charged with being under the influence of a controlled substance, several defense strategies may apply to your case. An experienced criminal defense attorney can evaluate the circumstances of your arrest and identify the strongest defenses.

Not Actually Being Under the Influence

One common defense is challenging whether you were actually under the influence at the time of arrest. As mentioned earlier, many medical conditions can mimic drug intoxication. If you have a documented medical condition or were experiencing a health crisis, your attorney can give medical evidence to show that your symptoms were not caused by drug use. 

Invalid Drug Test Results

Another defense involves challenging the validity of the drug test results. Drug tests are not perfect, and false positives happen. If the drug test results are unreliable, the prosecution may not be able to prove their case. Your attorney can question whether:

• The test was administered properly

• The sample was handled correctly

• The testing equipment was calibrated and maintained according to standards

You Weren’t High When You Were Arrested

You must be under the influence at the time of arrest to get in trouble for it. Drug tests can detect substances in your system for days or even weeks after use, long after the intoxicating effects have worn off. If the test only shows that you used drugs at some point in the past but not that you were actively high at the moment of arrest, this can be a strong defense.

Rights Violation or No Probable Cause

Your attorney may also challenge whether the police had a valid reason to stop or detain you in the first place. If law enforcement violated your constitutional rights during the stop or arrest, any evidence they gathered, including drug test results, may be inadmissible in court.

Is Being High Probable Cause for Being Searched?

Under the Fourth Amendment, police need probable cause to conduct a search. This means they need reasonable grounds to believe a crime occurred and evidence will be found. 

If an officer observes clear signs you are under the influence, this can establish probable cause to arrest you. They can then search you and the area within your immediate control (backpack, car, etc). However, appearing intoxicated does not automatically allow police to search your vehicle, home, or other areas beyond your person without a warrant or additional justification. 

Contact a San Jose, CA Drug Crimes Defense Lawyer

Fuller Law Firm is committed to helping people who have been arrested due to substance abuse issues. A Santa Clara County, CA, criminal defense attorney will work to help you get a second chance. Contact us at 408-234-7563 for a complimentary consultation.