Possessing Benzodiazepines Without a Prescription - Health and Safety Code 11375(b)(2) HS
Benzodiazepines, often referred to as 'benzos,' are a class of psychoactive drugs used to treat various health conditions such as anxiety, insomnia, and seizures. They include commonly known medications like Valium, Xanax, and Ativan.
Despite their medical uses, these substances have the potential for misuse and dependency, which has led to their regulation under the law.
In California, the possession of benzodiazepine drugs and similar sedatives without a valid prescription is a violation of the law under Health and Safety Code 11375(b)(2) HS.
This law falls under the broader umbrella of California's Controlled Substances Act, designed to regulate the use, possession, and distribution of certain substances, including benzodiazepines.
Health and Safety Code 11375 HS says, “(a) As to the substances specified in subdivision (c), this section, and not Sections 11377, 11378, 11379, and 11380, shall apply.
(b)(1) Every person who possesses for sale, or who sells, any substance specified in subdivision (c) shall be punished by imprisonment in the county jail for a period of not more than one year or state prison.
(2) Every person who possesses any controlled substance specified in subdivision (c), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be guilty of an infraction or a misdemeanor.
(c) This section shall apply to any material, compound, mixture, or preparation containing any of the following substances: Chlordiazepoxide, Clonazepam, Clorazepate, Diazepam, Flurazepam, Lorazepam, Mebutamate, Oxazepam, Prazepam, Temazepam, Halazepam, Alprazolam, Propoxyphene, Diethylpropion, Phentermine, Pemoline, Fenfluramine, Triazolam.”
If you are found guilty of illegal possession of any benzodiazepine, you could be either cited and fined for an infraction or face up to 6 months in jail under a misdemeanor conviction.
What Does the Law Say?
Under HS 11375(b)(2), it is unlawful for any person to knowingly possess specified controlled substances, including benzodiazepines, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in the State of California.
This law applies to any "material, compound, mixture, or preparation" of the many drugs listed above.
- Simple possession is covered under HS 11375(b)(2);
- Possession for sale is covered under HS 11375(b)(1);
- Selling or trafficking is covered under HS 11375(b)(1);
- Being under the influence is covered under HS 11550;
- Driving under the influence is covered under VC 23152(f).
For purposes of this law, possession (i.e., "simple possession) of a benzo can refer to any of the following:
- Actual possession: Carrying the drug on your person;
- Constructive possession: Having control over the drugs (e.g., in your home or vehicle) or
- Joint possession: Having shared control over the drugs along with another person.
To obtain a conviction, the prosecution must prove all of the elements of the crime beyond a reasonable doubt:
- You possessed a controlled substance;
- You knew of the drug's presence and that it was a controlled substance;
- The controlled substance was a benzodiazepine, and
- The benzodiazepine was in a usable amount.
What is a Related Offense?
If the police have reason to suspect you were in possession of illegal benzodiazepines with the intent to sell them, such as if you were found with a large quantity of the drugs or you did sell them, you could face escalated charges under HS 11375(b)(1).
Selling benzodiazepines or possessing with intent to sell are "wobbler" offenses, meaning they can be charged either as misdemeanors or felonies. If convicted of felony possession or sale, you could face up to 3 years in prison.
What Are Some Examples?
EXAMPLE 1: Jerry is pulled over by CHP on a traffic stop. The policeman notices a prescription bottle in the cup holder during the stop. The bottle contains Xanax, and the label shows that the prescription belongs to Jerry, verifiable by his ID, along with the name of his doctor. While Jerry might face other charges like DUI (if he was driving while taking the Xanax), he likely won't be charged with illegal possession of benzos.
EXAMPLE 2: Same scenario, except that the officer has pulled Jerry over for suspected DUI, opens the glove box as part of a lawful search, and discovers a baggie with loose Xanax pills inside. Unless Jerry can provide proof of a prescription, he may be charged with violating HS 11375(b)(2).
What Are the Penalties?
Simple possession of benzodiazepines is a "wobblette" in California, meaning it can be charged either as an infraction or a misdemeanor. The factors determining how it is charged may include how much of the drug was present, prior offenses, etc.
- For infractions: The penalty is a fine of $250 with no jail time (and no criminal record).
- For misdemeanors: The penalty is a fine of up to $1000 and up to 6 months in county jail. In some cases, however, a defendant might qualify for a diversionary program that allows the charge to be dismissed.
What Are the Common Defenses?
There are various defense strategies that a California criminal defense lawyer might employ to combat a charge under HS 11375(b)(2), such as the following:
- You had a valid prescription. The charges will be dismissed if you show that a licensed California physician lawfully prescribed the medication.
- Lack of knowledge. To be convicted, prosecutors must prove you willfully possessed a controlled substance. Your attorney may argue that you were unaware the drug was in your possession or that you were unaware the pills were a controlled substance.
- Illegal search. Suppose the drugs were discovered during an illegal search (i.e., without a warrant or probable cause). In that case, your attorney may be able to have the evidence suppressed, resulting in the dismissal of charges.
- Entrapment. If you were entrapped by undercover police, who coerced you into buying or selling drugs when you would not otherwise have done so, we may be able to get the drug charge dismissed.
Contact our law firm for a case review and to discuss legal options. Eisner Gorin LLP has offices in Los Angeles, California.
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