GHB is a narcotic or controlled substance and its use without a valid prescription is illegal.
There are at least 4 laws involving GHB you can be arrested for and prosecuted under various California statutes.
Lets take a deeper look at these laws…
What Is The Drug Schedule?
The federal government creates a schedule for all drugs in the united states according to potential for abuse and medicinal use.
Schedule I drugs are those with no medically accepted value or use and have a high potential for abuse and dependence.
|Drug Schedule||Abuse Potential||Medical Use||Example|
|I||High||No Medicinal Uses||Heroin, LSD, GHB, Ecstacy|
|II||High||Some Medicinal Uses||Cocaine, Meth|
|III||Modereate Potential For Abuse||Accepted Medicinal Uses||Ketamine, Steriods, Testosterone|
|IV||Low Potential For Abuse||Accepted Medicinal Uses||Xanax, Ambian|
What Effect Does GHB Produce?
It produces a euphoric and sociable effect but can also cause dizziness and nausea and has the potential of causing muscle spasms and loss of consciousness with high enough doses.
The drug primarily comes in an odorless/colorless liquid but can also be in the form of a powder or tablet and is quickly dissolved.
Larger doses of GHB may cause a loss of consiousness for several hours which is why GHB has also been known along with rophynol as a date rape drug1.
There are four primary laws which you can be arrested for with regard to GHB.
Lets take a look at these in greater detail.
Possession of GHB may be prosecuted under two separate laws.
- Possession of a controlled substance without a valid prescription (BP 4060) or (HS 11377).
- Possession of a controlled substance – (HS 11350)
Possession of a controlled substance without a prescription is in reference to Xyrem or any other prescription drug which may have GHB as a main component.
It may be filed and prosecuted under either business and professions code 4060 or health and safety code 11377 or both.
This is a more serious charge since the drug in this code section is considered a schedule I drug.
What Is The Penalty For GHB Possession?
11377 HS and 11350 HS are usually misdemeanor offenses.
If charged as a misdemeanor under either code section, you face up to one year in the county jail.
If convicted under 11377 HS, your fine can be up to $10,000 while under hs 11350, it is a maximum of $20,000.
If charged as a felony under either statute, you face 16 months, 2 or 3 years in state prison.
You can be prosecuted under health and safety code 11351 hs or 11378 hs.
These code sections also prohibit purchasing a controlled substance including GHB with the intent to resell it.
How Does A Prosecutor Prove Intent To Sell GHB?
An intent to sell charge may be based on the quantity purchased or other circumstances.
For example, finding pay/owe sheets or the police observe numerous people entering and exiting your house at all hours, then you will likely be charged under either of these statutes for intent to sell.
If convicted under 11351 HS, or HS 11378 you face.
|Penalties||HS 11351||HS 11378|
|Fine||Up to $20,000||Up to $10,000|
|Probation||Formal Probation||Formal Probation|
|County Jail or State Prison||Up to 1 year county or 2, 3 or 4 years prison||16 months, 2 or 3 years prison|
Transporting, giving away, selling and administering GHB are illegal under California health and safety code 113524.
What makes this law different than possession with intent to sell is the actual sale of the GHB and not just the intent to sell.
Whats Does Administering GHB Mean?
Administering the drug means directly giving it to someone who then ingests or inhales it, such as at a club.
What Is The Penalty?
A conviction for selling GHB under health and safety code 11352 HS carries 3, 4 or 5 years in state prison and a fine up to $20,000.
If convicted under health and safety code 11379, sales or transportation of GHB, you face 2, 3 or 4 years in state prison and a maximum fine of $10,000.
Are There Sentencing Enhancements For Transporting GHB?
If you transported GHB across more than two California counties, the law imposes a sentence of up to 9 years.
You also face an enhanced sentence if you knowingly sold GHB or gave it to a person who fit one of these criteria:
- Under treatment for a mental disorder, mental health illness or condition
- Under treatment for a drug dependency problem
- Had a previous violent felony conviction
Like all states, California prohibits driving a motor vehicle while under the influence of alcohol (DUI) or drugs (DUID).
It is irrelevant if the drug used was legally prescribed so long as it affected your ability to operate a motor vehicle to an appreciable degree5.
Driving under the influence of GHB is prosecuted under vehicle code 23152(f) vc.
What Are The Penalties For DUI of GHB?
A first time DUID conviction results in the same sentence as a first DUI. You could spend a weekend in jail, do community service, lose your driving privileges for 9 months, participate in a drug education or counseling program and pay a fine up to $1000.
Subsequent violations result in mandatory minimum sentences, a longer suspension of your driver’s license and other consequences.
A violation of either 11350 or 11377 as a misdemeanor or felony, however, makes you eligible for diversion. Diversion is an alternative to jail or prison and can result in a dismissal of all charges if you complete all conditions imposed and successfully complete a drug counseling or therapy program6.
Pleading to or being found guilty of possession of GHB makes you eligible for any of California’s diversionary programs under Proposition 36 and Penal Code 1000, which provide for a deferred judgment or diversion. You may also qualify for participation in any of California’s drug courts.
You are not eligible if you possessed GHB for sale or were selling under 11379.2 HS. Other criteria that you must meet include:
- no prior possession conviction with intent to sell
- no record of probation violations or parole violations
- no participation in a drug diversion program within 5 years of the current offense
- no prior felony convictions within 5 years of the current offense
Under PC 1000, you enter a plea of guilty but the judge defers further proceedings for up to 3 years. You must complete a court-approved drug treatment, not commit any further criminal offenses and pass all drug tests, which may be randomly scheduled.
If you are successful, the court will dismiss the charges.
Are The Other Program Alternatives To Jail?
Proposition 36 is a deferred judgment alternative available for those with violent or an otherwise serious felony conviction.
You still, however, must not have committed any of the conditions outlined above.
Proposition 36 was designed for defendants with a drug possession charge but who committed a violent or serious felony. You still plead guilty to the underlying charge and the court will defer further proceedings except that you are under formal probation and any conditions imposed.
Completion of your treatment program along with adherence to all conditions does not guarantee the court will dismiss the charges but it is unlikely you will spend any time in jail or prison.
Another program is participation in a California drug court. You still must not have a record of past possession with intent to sell convictions, have no previous felony convictions in the past 5 years and no participation in a diversionary program within this time. Drug courts are more flexible in the conditions imposed on you, such as requiring drug counseling, seeking or maintaining employment and meeting regularly with your probation officer. If you complete all conditions to the satisfaction of the court, it will dismiss your charges.
Possession of a Valid Prescription for Xyrem
Having a valid prescription for Xyrem is a defense so long as it is in your name, you do not possess more than what was prescribed and it was used as prescribed.
Lack of Proof of Possession
There are situations where you were unaware of the presence of the drug in your jacket, purse or car because someone had used your car, jacket or purse. In other cases, more than one person may have had access to the area where the drug was found7.
You must also be shown that you were aware that the drug was a controlled substance. Facts supporting that might be that you were given the substance in a club setting where its use was known or you have a prior conviction for drug possession. Otherwise, the prosecutor might not be able to show that you knew the nature or the drug8.
Lack of Intent to Sell
If you were not caught selling, giving away or transporting GHB, then the DA can attempt to convict you for intent to sell based on the quantity you possessed. But if no baggies, cash, scales or similar paraphernalia are found with you that are commonly associated with selling controlled substances, then you might convince a court or jury that you only possessed it for personal use.
If so, you may be eligible for a diversionary disposition or at less severe sentence and an opportunity to have it expunged.
Lack of Proof of Being under the Influence
To be convicted under CVC 23152(a) or DUI of Drugs, your blood will have to be tested. The officer who requests that you be tested, however, must have probable cause to believe you are under the influence. This might include the officer’s observation of your demeanor, such as confusion, incoherence, an inability to follow instructions, inappropriate responses to questions and poor performance on field sobriety tests.
Other indications are acting irrationally or experiencing hallucinations. Absent a drug test, however, symptoms that an officer might attribute to drug use are just as likely to be from fatigue, dehydration or some other illness or condition unrelated to any drug use.
Also, no one, unless you are under probation, are a commercial driver or under the age of 21, is required to perform any field sobriety test or answer any questions other than producing your license, registration and insurance card. You will have to submit to a blood test, however, in most instances or risk losing your license along with other consequences.
Tainted Blood or Urine Test
The person who takes a sample of your blood must be a trained technician. The sample must be preserved and properly labeled and the chain of custody followed. A defense attorney can also obtain documentation to determine if the equipment used was properly maintained and serviced. Any interruption in this process or breach of protocol or guidelines in taking the sample or in preserving it can render it inadmissible.
Illegal Search and Seizure
Law enforcement officers must respect your civil and constitutional rights before searching you or your home, car or place of business. It is not that unusual for an officer to violate the rights of criminal suspects by forcing them to submit to a search or by searching a person suspected of a crime without probable cause to do so. Planting of evidence does occur as well.
If you are stopped for a traffic violation, your car may not be searched unless the officer has probable cause to believe you are carrying controlled substances in your car or has other evidence of a crime, usually by it being in open view9.
If you are validly arrested, you can be searched incident to your arrest but only of your person and the immediate area for weapons10. Your car, home or business may not be searched without a search warrant, unless certain exigent circumstances exist, that is supported by an affidavit properly attested to by a peace officer who can point to certain articulable facts to demonstrate probable cause. Search warrants limit the extent, place, time and scope of the search. If officers are looking for a drugs, looking through your computer files or your financial documents in your home likely exceeds the scope.
You can seek post-conviction relief in most instances if you were convicted under Health and Safety Code 11377 and 11350 under Penal Code 1203.4. California law allows expungement of a conviction so long you did not serve time in state prison. You can also seek expungement of your DUID conviction.
Reducing Your Felony to a Misdemeanor
State prison time disqualifies you from this type of relief so it is vital that your criminal defense attorney negotiate your charge to a misdemeanor before trial. But if you are convicted of a felony under either 11377 HS or 11350 HS, you may move the court to reduce it to a misdemeanor under PC 17(b) so long as you served no state prison time. Further, under Proposition 47, you can seek to have your felony conviction reduced to a misdemeanor and be resentenced for simple drug possession convictions.
Eligibility for Expungement
As indicated herein, if you were convicted under 11377 HS and your offense was not dismissed pursuant to a diversionary disposition, or you were convicted of a misdemeanor under Health and Safety Code 11350, then you qualify for an expungement of the conviction.
If you have been arrested and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- People v. Giardino (2000) 98 Cal.Rptr.2d 315 [↩]
- People v. Barnes (1997) 57 Cal.App.4th 552, 556 [↩]
- People v. Parra (1999) 70 Cal.App.4th 222,226 [↩]
- People v. Emmal (1998) 68 Cal.App.4th 1313, 1316;People v. Meza (1995) 38 Cal.App.4th 1741, 1746 [↩]
- People v. Enrique (1996) 42 Cal.App.4th 661, 665 [↩]
- Gardner v. Schwartzenegger (2009) 178 Cal.App.4th 1366, 1370 [↩]
- People v. Barnes (1997) 57 Cal. App.4th 552, 556 [↩]
- People v. Horn (1960) 187 Cal.App.2d 68, 75-75 [↩]
- Horton v. California (1990) 496 U.S. 128, 136 [↩]
- Chimel v. California (1969) 395 U.S. 752 [↩]