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Illegal Possession of GHB - Health and Safety Code 11350 HS

Under California law, it's a misdemeanor crime to possess or use GHB or XYREM (pharmaceutical GHB) without a doctor's prescription. However, you can get the criminal charge dismissed without jail if you complete a diversion program. Notably, selling or planning to sell GHB is always a felony.

Illegal Possession of GHB - Health and Safety Code 11350 HS
It's a misdemeanor crime to possess or use GHB without a valid doctor’s prescription.

Gamma-hydroxybutyric acid (GHB) is a substance with a complex profile due to its dual standing as a Schedule I controlled substance and Schedule III prescription drug and, more recently, its growing popularity as an illicit party drug.

In California, as with other legally regulated substances, possessing GHB without a valid prescription is a crime under California Health and Safety Code 11350 (HSC) and section 11377.

You can lawfully possess GHB if you have a current and valid prescription for XYREM and you have no more medication than the prescription authorizes. If you are convicted of illegal possession of GHB, you could face fines and significant jail time.

Simple GHB possession becomes a felony if you have already been convicted of specific serious offenses, such as murder, gross vehicular manslaughter while intoxicated, or a sex crime requiring registration as a sex offender.

What is GHB?

GHB, or Gamma-Hydroxybutyric acid, is more commonly known in its pharmaceutical form as sodium oxybate, marketed under the trade name Xylem.

It is primarily prescribed to treat narcolepsy, a condition characterized by overwhelming daytime drowsiness and sudden attacks of sleep. Sodium oxybate helps improve wakefulness and reduces episodes of muscle weakness in narcoleptic patients, providing essential relief for those affected by this debilitating disorder.

What is the Illicit Use of GHB?

Beyond its medical applications, GHB has gained a notorious reputation as a "party drug." Its euphoric and calming effects have made it popular among teens and young adults at dance clubs and rave parties.

It is also frequently used as a "date rape" drug because it is reported both to increase libido and to cause the user to have amnesia (i.e., no memory of events that occurred while under the drug's influence).

Often sold in liquid form, GHB is both odorless and colorless and can be mixed with beverages and consumed without detection, posing significant danger due to its potency and the unpredictability of its effects.

The misuse of GHB is fraught with severe risks. GHB functions as a Central Nervous System (CNS) depressant, and even small amounts can lead to a range of harmful effects, including:

  • Euphoria and Drowsiness: While some may seek the euphoric effects, drowsiness and decreased anxiety can impair cognitive and motor functions.
  • Memory Impairment: Users often experience confusion and memory lapses, which can leave them vulnerable to accidents and assaults.
  • Hallucinations and Aggression: In some cases, GHB can cause paradoxical effects such as visual hallucinations and aggressive behavior.
  • Increased Risk with Alcohol: When combined with alcohol, GHB's depressant effects are amplified, leading to potentially life-threatening scenarios.

High doses of GHB can result in unconsciousness, seizures, slowed heart rate, considerably slowed breathing, lower body temperature, vomiting, coma, and even death. The lack of a reliable antidote further complicates the treatment of GHB overdoses.

What is the Legal Status of GHB?

Due to its high potential for abuse, GHB is classified as a Schedule I controlled substance under the Controlled Substances Act, indicating it has no accepted medical use and a high potential for abuse. However, FDA-approved formulations like Xylem fall under Schedule III, meaning possessing and using a valid prescription is legal.

In California, illegal possession of GHB without a valid prescription is prosecuted under HSC 11350. In this case, any of the following types of "possession" qualify as a prosecutable crime:

  • Actual possession: the drug is found on your person or under your direct physical control
  • Constructive possession: you have direct access or control of the drug (e.g., stored in your car trunk, your home, or in a locker when you have the key
  • Joint possession: you have shared access to the drug along with one or more other people.

California Health and Safety Code section 11351 and section 11378 prohibit possessing a controlled substance such as GHB with the intent to sell it.

What are the Penalties for GHB Possession?

GHB possession is typically considered a "wobbler" offense, meaning it can be prosecuted as either a misdemeanor or a felony.

  • Misdemeanor Offense: Typically, first-time offenders may be charged with a misdemeanor, leading to up to one year in county jail and up to $1000 in fines.
  • Felony Charges: Under certain circumstances, such as prior convictions or large quantities of GHB, the offense can be elevated to a felony, resulting in harsher penalties, including longer prison sentences.
  • In either case, the judge can impose probation in addition to or as an alternative to jail time.

California Health and Safety Code 11550 HS criminalizes being under the influence of controlled substances, such as GHB. Vehicle Code 23152(f) VC makes driving a criminal offense while under the influence of drugs (DUID).

Suppose the district attorney charges you under HS 11351 or HS 11378. Possessing GHB for sale in violation of HS 11351 is a felony that carries:

  • Two, three, or four years in jail.
  • Up to $20,000 in fines.

Possessing GHB for sale in violation of HS 11378 is also a felony that carries:

  • 16 months, two or three years in jail.
  • Up to $10,000 in fines.

California Health and Safety Code 11352 and section 11379 prohibit the trafficking of controlled substances, such as GHB, with the following penalties:

  • Three, four, or five years in prison.
  • Up to $20,000 in fines.

What Are Drug Diversion Programs?

In some cases, first-time offenders may have the option to participate in a drug diversion program rather than face criminal prosecution. These programs offer counseling and education to help individuals overcome their addictions and avoid future offenses.

Successful completion of a diversion program can result in charges being dismissed. Participating in a diversion program such as Proposition 36, Penal Code 1000 PC, or California drug court generally avoids jail and conviction.

What are the Common Defenses Against Illegal Possession Charges?

If you are accused of illegally possessing GHB in California, several defenses may be available depending on the specifics of your case:

  • Lack of Knowledge: Arguing that you were unaware the substance in your possession was GHB can be a viable defense if you genuinely did not know about the drug's presence or nature.
  • Prescription Defense: If you have a valid prescription for GHB, this could serve as a complete defense against illegal possession charges.
  • Illegal Search and Seizure: Evidence obtained through unlawful search and seizure can be challenged and potentially excluded from court proceedings, weakening the prosecution's case against you.
  • Temporary Possession: Demonstrating that your possession of GHB was momentary and solely to dispose of it can sometimes be a successful defense strategy.

Contact our California criminal defense lawyers for more information. Eisner Gorin is based in Los Angeles, CA.

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