Yes, in California, it is a misdemeanor to possess or use Gamma-Hydroxybutyric Acid (GHB) or Xyrem (pharmaceutical GHB) without having a prescription from a doctor. It is a central nervous system depressant that is often referred to as a date rape drug.
GHB can appear as a liquid or as a solid white powder that is commonly mixed in a beverage. The Food and Drug Administration (FDA) categorizes GHB in Schedule I of the Controlled Substances Act (CSA).
GHB is both colorless and odorless, making the potential for abuse even higher. Common side effects of GHB consumption include:
- Nausea;
- Hallucinations;
- Amnesia;
- Loss of consciousness;
- Slowed heart rate; and
- Death.
Other effects of GHB consumption on an individual’s body may include:
- Euphoria;
- Increased sex drive;
- Decreased anxiety;
- Aggressive behavior.
GHB is provided by prescription as Xyrem as an approved drug for the treatment of narcolepsy. As a prescription drug, Xyrem is classified as a Schedule III drug when it is used legally.
Pursuant to the California Health and Safety Code, there are several offenses an individual may be charged with if they illegally possess GHB, including:
- Simple possession under 11350 and 11377;
- Possession for sale under 11351 and 11378;
- Trafficking, or selling or transporting, under 11352 and 11379.
How Is Illegal Possession of GHB Defined in California?
Pursuant to GHB laws in California, an individual can be arrested for different criminal charges, as noted above. An individual, for example, may be charged with illegal possession of GHB without a valid prescription or for possession of a controlled substance.
It is important to note that an individual is considered to possess a drug when it is on their person or is attached to their person, for example, in a backpack, purse, pocket, suitcase, or other container. In addition, an individual may constructively possess a drug even when it is not in their immediate person.
For example, an individual may leave a controlled substance in a handbag and leave that handbag in a vehicle. If so, they can still be charged for the illegal possession of that controlled substance.
Is Possession of GHB the Same as Being Under the Influence of GHB?
No, the possession of GHB is not the same as being under the influence of GHB. This is because an individual may possess GHB without actually taking the drug.
There are separate criminal charges for the illegal possession of GHB under California GHB California Health and Safety Code Section 11377 and for being under the influence of GHB under California Health and Safety Code Section 11550. Being under the influence of GHB is often prosecuted under the California Vehicle Code, specifically Vehicle Code Section 23152(f), when a defendant operates a motor vehicle under the influence.
In most cases, the illegal possession of GHB is charged as a misdemeanor that may carry a penalty of up to $20,000 in criminal fines, one year in county jail, or a combination of both. The possession of GHB, however, may also be charged as a felony if a defendant has previously been:
- Charged with a sex crime;
- Charged with a felony crime;
- Convicted of illegal possession.
If a defendant is charged with a felony, the penalties may be much more severe, including incarceration of 16 months to 3 years in prison. In addition, it is illegal to possess GHB with the intent to sell.
Administering, selling, or transporting GHB is also illegal under California Health and Safety Code Section 11352. For example, if an individual is caught transporting GHB over two counties in the State of California, the criminal charges may include up to 9 years in prison.
An individual may be charged with being under the influence of GHB if their mental or physical abilities are impaired in a manner that is detectable. An individual is often convicted of being under the influence of GHB using a field sobriety test.
Being under the influence of GHB is categorized as a misdemeanor offense that carries a penalty of up to one year in a county jail. For a first-time offender, a defendant may avoid jail time by participating in a drug diversion program.
An individual may have questions regarding the possible offenses they may be charged with and penalties they may face related to GHB in California. If so, they should consult with a local California attorney.
What Does the Prosecution Have to Prove to Convict Me of GHB Possession?
In order to convict a defendant of possession of the controlled substance GHB in California, the prosecution is required to prove all of the following elements:
- The defendant unlawfully possessed or exercised control over GHB;
- In other words, the defendant did not have a valid prescription;
- The defendant knew that the GHB was present;
- The defendant was aware that the substance was GHB;
- The substance was actually GHB; and
- There was enough of an amount of GHB present that it could be used.
It is important to note that the prosecution has to prove all of the elements listed above beyond a reasonable doubt in order to convict a defendant of illegal possession of GHB.
What Are the Possible Defenses to a GHB Possession Charge?
If an individual is charged with possession of GHB, there are several legal defenses that may be available to challenge the criminal charges against them. For example, the defense that is most commonly used is possessing a valid prescription for the drug.
If an individual does not have a valid prescription for GHB, there may still be other legal defenses available to them, including:
- Entrapment: In some cases, an individual’s possession of GHB may be because an undercover officer or other individual coerced them into possessing the drug. In these cases, the defendant may use the legal defense of entrapment to lessen or remove the charges being brought against them;
- Non-possession: As noted above, the criminal prosecutor must be able to prove that the defendant was aware of the GHB and exercised control over it;
- Thus, if the GHB did not belong to the defendant, and the defendant was unaware, they cannot be charged with the illegal possession of the drug;
- Illegal search and seizure: The GHB may have been obtained by the police during an illegal search and seizure. If so, the evidence may be suppressed and not used against a defendant in the criminal charges brought against them; or
- Police misconduct: If the police engaged in police misconduct, such as planting the GHB or the excessive use of force, the charges brought against a defendant may be dropped.
Should I Contact a Lawyer to Help Me With My GHB Possession Case?
If you have been charged with any crime involving GHB in California, it is important to consult with a California drug lawyer. Your lawyer can review the facts of your specific case and provide you with the best legal options and defenses that may be available to you.
Your attorney can also attempt to negotiate with the prosecution for a reduction in your charges or even a dismissal. If you consider a plea deal, your lawyer will represent you during plea negotiations as well as in court as necessary.
Having a conviction, especially a felony conviction on your criminal record, can affect many aspects of your life aside from your criminal record, including your ability to find a job and maintain custody of your children.
