California Drug Crimes Involving GHB
Possessing gamma-hydroxybutyric (GHB) is a serious crime in California. Depending on the circumstances of your arrest, prosecutors may file additional charges to or in lieu of a possession charge.
GHB’s Medical Uses
GHB is a controlled substance that is a central nervous system depressant that is odorless, colorless, and virtually tasteless when combined with alcohol and other beverages. GHB was approved by the Food and Drug Administration in 2002 as the generic drug Xyrem and was drastically restricted to its use only in the treatment of the sleeping disorder, narcolepsy.1
The United States “Controlled Substances Act” regulates the manufacturing and possession of controlled substances. GHB was listed on Schedule I of the Control Substances Act in 2000 and then on Schedule III in 2001, due to the newly synthesize drug Xyrem.2 The differences in schedules are as follows:
Schedule I controlled substances:
- Have a high potential for abuse
- Do not have accepted medical use
Schedule III controlled substances:
- Have less abuse potential than drugs classified under Schedules I and II
- Have currently accepted medical uses
- May lead to moderate to low dependence or high psychological dependence if abused3>
GHB use produces a certain euphoria and tranquility due to its sedative effects. As a result, GHB abuse is often used by young adults at bars, nightclubs, concerts, and raves. Because GHB is virtually tasteless when taken with drinks, it has also been commonly used as a “date-rape” drug to commit sexual assaults due to the drug’s ability to sedate and incapacitate unsuspecting victims.4
However, abusing GHB can result in serious side effects including:
- Loss of consciousness
Examples of Drug Crimes Involving GHB
Some examples that may trigger your arrest for a drug crime involving GHB include:
- Possession of GHB without a valid prescription
- Possession of more GHB than is prescribed
- Possession of someone else’s GHB prescription
- Possession of more than one prescription
- Selling or transporting GHB to someone else
- Intending to sell GHB to someone else
- Driving under the influence of GHB
The following are California Health and Safety Codes that you can be prosecuted for that relate to GHB:
CA HS Code § 11350, California’s “personal possession of a controlled substance” law
It is a serious crime if you possess GHB without a valid prescription. If convicted of this crime, you face up to one year in jail and a $1,000 fine.
CA HS Code § 11351, California’s “possession of a controlled substance for sale”
law is a more serious crime, as it relates to possessing GHB for sale as opposed to possessing them for personal use. If convicted of this felony, you face either probation with up to a year in county jail, or two, three, or four years in county jail.
CA HS Code § 11352, California’s “sale & transportation of a controlled substance” law
This is the most serious possession-related GHB offense. Illegally selling GHB could result in being sentenced to prison for three, four or five years.
CA HS Code § 11370.1, California’s “possession of a controlled substance while armed” Law
Although not strictly limited solely to possession of GHB, CA HS Code § 11370.1 is a very serious crime. Under this section, it is a felony to unlawfully possess certain controlled substances while knowingly armed with a loaded, operable firearm. You face imprisonment in state prison for to two, three of four years for this crime.
CA HS Code § 11550, California’s “being under the influence of a controlled substance” Law
You are in violation of CA HS Code § 11550 if you are under the influence of GHB and you do not have a valid prescription, or your use of GHB is beyond the scope of your prescription, i.e. taking more than you are prescribed. This offense is a misdemeanor and may result in a jail sentence of up to one year.
Cal Pen Code § 261
You will be in violation of Cal Pen Code § 261 if you commit a rape while the victim is under the influence of GHB. This offense is a felony and may result in prison sentence of three (3), six (6), or eight (8) years and possibly more if the victim sustained great bodily injury during the commission of the rape. In addition to a lengthy state prison term, you also may be required to pay a fine of up to $10,000 under California Penal Code § 672. You may also be required to register as a sex offender under California Penal Code § 290.
Prosecution for a Charge of Possession of GHB
California has several laws that regulate the possession of GHB, and its use and sales.
In order to convict you with possessing GHB in violation of California Health & Safety Code §11350, a prosecutor must be able to prove beyond a reasonable doubt the following:
- You [unlawfully] possessed a controlled substance;
- You knew of its presence;
- You knew of the substance’s nature or character as a controlled substance;
- The controlled substance was GHB;
- The controlled substance was in a usable amount.
Defenses to a Charge of Possession of GHB
Your experienced criminal defense attorney can raise several defenses to a charge of simple possession of GHB, which include:
- You have a valid prescription of GHB
- Your use or possession was within the scope of your valid prescription
- The police mistakenly believed that the GHB in question belonged to you.
- You had no knowledge that the GHB was in your possession.
- The police conducted an illegal search and seizure in violation of your 4th or 5th Amendment rights.
Sentencing and Punishment upon a Conviction for Possession of GHB
Due to the passing of Proposition 47, possession of GHB is now a misdemeanor in California. If you are convicted of this offense, you face a maximum sentence of one year in county jail.
What Constitutes Unlawful Possession?
Possession of GHB is unlawful when you do not have a valid prescription for it. Furthermore, you do not have to actually hold or touch the GHB to possess it. It is enough if you have control over it, or the right to control it, either personally or through another person. However, agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.
Generally in California criminal law, the legal definition of “possession” can refer to three different legal meanings. It could refer to “actual” possession, “constructive” possession or “joint” possession. Possessing an illegal narcotic under any of these definitions is illegal.
Knowledge of the Presence and Nature of the Substance
In order for you to be convicted of possession of a controlled substance, the prosecution must prove beyond a reasonable doubt that:
- You knew of the drug’s presence; and
- You knew of its nature as a controlled substance.
If you did not know that the GHB was present, or if you did not know what the drug was, then you should be acquitted of this offense. For example, you loaned your car to someone last week and without your knowledge, that person left a bottle of un-prescribed GHB in the back seat; or
Knowing the precise chemical makeup of the drug is not necessary with respect to the second type of knowledge required. If you know that the drug is a controlled substance, that knowledge is sufficient to satisfy this element of the crime.6
What is a usable amount?
This element of the crime requires that you possess enough of the drug so that it can be used as a controlled substance. This means that there has to be enough of the drug so that it can be used as a drug.7
However, that does not mean that there has to be enough of the controlled substance to have a “narcotic effect”, meaning the effect it is ordinarily expected to produce.
Possession of a Controlled Substance – Defenses (CA HS §11350)
There are various legal defenses to a possession charge that a skilled drug crime lawyer could argue on your behalf. The most common legal defense for a charge of simple possession of GHB is that you had a valid prescription for the GHB that you possess.
The most common legal defense to a California GHB-related offense for possessing or using GHB is that you used or possessed the drug in strict compliance with a valid prescription. This defense does not apply if you:
- have a fraudulent prescription for the drug (i.e. you violated California’s doctor shopping laws.)
- are found in possession of more drugs than your prescription authorizes; or
- possess someone else’s legally prescribed drugs.
- If you cannot establish that you had a valid prescription, there are still a variety of defenses to GHB-related offenses such as mistaken identity, a violation of an individual’s 4th amendment rights, or police misconduct.
Another common defense is mistaken identity. You may be able to show that the GHB in fact belonged to another person, and the police were incorrect by assuming that it was yours.
Lack of Knowledge
As mentioned above, all of the elements of the crime must be met in order for you to be convicted of possessing a controlled substance. Hence, in order to be convicted of possessing a controlled substance you must:
- Know you possessed the drug; and
- Know that it was, in fact, a controlled substance.
You must have been aware that the drugs you possessed were an illegal controlled substance. If you did not know that the drugs were illegal, this is a valid defense to the charge.
Illegal Search and Seizure
An illegal search and seizure is also a defense to California GHB-related offenses. An illegal search and seizure is one conducted by police in violation of California’s search and seizure laws. Police are in violation of search and seizure law if they have searched you without a valid California search warrant or if they lack probable cause that criminal activity occurred. Even if police have a valid search warrant, they may still be in violation of search and seizure laws if they go beyond what is allowed by the search warrant.
If there has been an illegal search or seizure, your attorney can file a motion to suppress evidence. If the court grants this motion, the evidence will be the excluded, and it is likely the case will be dismissed.
Possession of a Controlled Substance – Sentencing and Punishment (CA HS §11350)
A conviction of this misdemeanor crime may result in a maximum sentence of up to one year in county jail.
If you are not a citizen of the United States, and you are convicted for possession of illegal drugs, you could be deported, denied reentry and denied naturalization.8
Defendants who are found guilty of this may qualify to participate in drug treatment instead of serving time in jail or prison, depending on their criminal record. This is called “Drug Diversion”, and it is authorized under: Proposition 36, Penal Code 1000 PC, and California drug courts. Drug diversion allows some people who have committed non-violent drug possession offenses to serve their sentences in drug treatment programs in lieu of jail or prison. Once you successfully complete drug diversion, you may be qualified to have your drug charge dismissed.
Simple Possession of a Controlled Substance – FAQ’s (CA HS §11350)
The following are some Frequently Asked Questions (FAQ’s) from other clients facing charges of possession of a controlled substance in violation of CA Health & Safety Code § 11350.
- What is common slang related to the possession of GHB?
- Liquid X
- Liquid ecstasy
- Georgia home boy
- Grievous bodily harm
- Liquid G
1. Can I be charged with possession of GHB even if I did not intend to use or sell it?
You can be charged with possession of a controlled substance even if you did not intend to sell or use the drugs. The key issues are whether you had knowledge of the drug’s presence and whether you had control over it. It is not important for what purpose you planned to use the drugs so long as the prosecution can prove these two elements.
2. Should I be convicted of HS 11350(a) if I was not aware of the drug’s presence?
In order to convict you of possession of a controlled substance under CA Health and Safety Code section 11350, the prosecution must prove that you knew of the presence of the drug at the time it was found to be in your possession. If you had no knowledge of the drug’s presence, you should not be convicted of this offense.
3. Can I be convicted of possession of a controlled substance for prescription medication?
Possession of a controlled substance not only includes illegal drugs such as heroin or methamphetamine, but it can also encompass a wide variety of legal prescription drugs. If you are found to be in possession of prescription medication and do not have a valid prescription from a licensed doctor, your possession of the drugs is considered illegal and you can be convicted under Health and Safety Code Section 11350.
4. If the drugs were found in my car and not on my person, can I still be convicted of possession of a controlled substance?
In order to be convicted of possession of a controlled substance, you do not actually need to be holding or touching the drug to be found in possession of it. Constructive possession exists when the drug is found in an area over which you exercise control. Therefore if the substance is found in your car, bedroom or any other area which you are likely to exert control, you can be prosecuted for possession.
Wallin & Klarich Can Help You Fight Charges of Possession of GHB
If you or someone you know has been charged with possession of GHB, a controlled substance in violation of California Health and Safety Code section 11350, contact one of
our experienced criminal defense attorneys at Wallin & Klarich today. You could be prosecuted for this crime, leading to jail time, heavy fines, loss of your professional license and loss of your right to possess a firearm. If you are not a U.S. citizen, you could also be deported.
Our attorneys at Wallin & Klarich have over 30 years of experience defending clients facing criminal drug charges. Hiring an attorney from Wallin & Klarich may be your best chance to avoid the serious consequences of a conviction for possession of a controlled substance.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our criminal defense attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to provide you with the very best legal representation. We are dedicated to giving you the personal attention you expect to help you through this difficult time. We are here to help you get the best result possible in your case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.
3. 21 U.S.C. Section 812↩
6. People v. Guy (1980) 107 Cal.App.3d 593, 600-601↩
7. People v. Leal (1966) 64 Cal.2d 504, 512↩
8. 8 U.S. Code Section 1227↩