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F 12.07a
Controlled Substances: Administer-Defined
*Modify CJ 12.07 as follows: [added language is capitalized; deleted language is between <<>>]:
“Administer” means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, BY ONE PERSON to the body of <<a [patient] [person] for that person’s immediate needs>> another person.
Points and Authorities
The term “administer” used in HS 11352 encompasses the act of giving another person an intravenous injection, and does not refer to the self-administration of drugs. (People v. Label (74) 43 CA3d 766, 769-771 [119 CR 522].) Accordingly, one’s use of a controlled substance proscribed by HS 11550 does not constitute the administration of a controlled substance proscribed by HS 11352. (See also People v. Mayfield (64) 225 CA2d 263, 267 [37 CR 340] [evidence that defendant furnished spoon to decedent who injected himself did not prove a violation of then HS 11501 prohibiting the administration of a narcotic].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
This instruction should be used in controlled substance violation cases in which the statute charged includes the term “administers” (e.g., HS 11352, HS 11353.7, HS 11354, HS 11355, HS 11360, HS 11361, HS 11370, HS 11379, HS 11379.5, HS 11382) to preclude conviction for self-administration of a controlled substance.
[Additional briefing on the requirement that the drug be administered to another person is available to FORECITE subscribers. Ask for Brief Bank # B-632.]
