Gamma-Hydroxybutyrate (GHB) is a central nervous system depressant and GABA receptor agonist with sedative hypnotic properties. GHB is a commonly abused drug that is present in the prescription drug XYREM for narcolepsy. People often abuse it alone or with alcohol because of its sedative effects. You can experience severe side effects if you abuse GHB. Side effects can be severe and include respiratory depression, seizures, coma, and, in extreme cases, death. This substance is highly regulated because of its side effects. Illicit GHB is a Schedule 1 depressant according to the United States Controlled Substances Act, but FDA-approved sodium oxybate is a Schedule III under the CSA.
It is an offense under California law for you to possess, use, manufacture, transport, or be under the influence of GHB. You can face an arrest and serious criminal charges if you are guilty of transporting, selling, and distributing GHB. Apart from being put in jail, a conviction related to GBH can taint your criminal record and affect various aspects of your life. You should seek the services of a skilled drug attorney if you are accused of possessing, distributing, or using GHB.
Some of the offenses that involve the possession, sale, or use of gamma hydroxybutyrate in California include:
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Health and Safety Codes 11350 and 11377
You can be arrested and charged under HSC 11350 or 11377 if you are guilty of possessing GHB without a prescription. However, having a valid prescription for XYREM will exempt you from the possession of GHB conviction. Licensed practitioners often offer valid prescriptions. You are required to use GHB with strict compliance after securing it.
GHB falls under Schedule 1 of controlled substances, and possessing it can attract criminal charges. Health and Safety Code is deemed a lesser crime because it involves possessing less severe drugs. The prosecutor must prove the following elements if he/she accuses you of possessing GHB:
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You exercised control over GHB without a prescription or illegally possessed it. Possession is a crucial element that helps determine whether a defendant is guilty under HSC 11350 or 11377. Under drug statutes, possession can be through direct possession or control over a substance. You will be guilty of possessing GHB if the substance is found in your bag or body cavity.
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You were aware of the presence of the substance. You cannot face charges for unlawfully possessing GHB if you were not aware of the presence of the substance.
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You were aware of the nature of the substance, which is GHB. GHB is often an odorless and colorless substance. It is not easy for you to know whether the substance in your possession is a controlled drug.
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You had enough GHB to be used. Possession charges generally require a usable quantity sufficient to produce drug effects.
You cannot face GHB possession charges if the prosecutor fails to prove the above elements. The court can convict you of a misdemeanor offense if you are guilty of possessing GHB without a prescription. Misdemeanor charges often attract a jail term that does not exceed one year in a county jail. You will face charges under HSC 11350 or 11377, depending on certain circumstances. Under these laws, the applicable fine is the significant difference in the punishment. Health and Safety 11350 attracts a fine that does not exceed $20,000. HSC 11377 attracts a fine that does not exceed $20,000.
Drug Diversion Program For GHB Possession
The judge can order you to enroll in a drug diversion program instead of a jail term if you are a low-level offender facing drug possession charges. Offenders facing misdemeanor charges qualify for this program under Proposition 36 or PC 1000 under the following situations:
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You had no intent to sell GHB or a prior conviction for possession
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A defendant has no history of probation or parole violation
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You have not engaged in the diversion programs in five years
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You have no prior felony conviction within five years of your possession charges
The purpose of a drug diversion program is for treatment and rehabilitation to prevent future drug use and crimes related to drugs. The judge can drop your possession charges if you complete the diversion program and show signs of rehabilitation.
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Possession For Sale Of GHB - Health And Safety Codes 11351 And 11378
It is a crime under HSC 11351 and 11378 for you to buy or possess a controlled substance with the intent to sell, including GHB. The prosecutor must prove the following elements if he/she accuses you of possessing GHB for sale:
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You bought or possessed GHB. Drug possession under 11351 can be actual, constructive, or joint. You can be guilty of the offense if the prosecutor provides evidence showing that you controlled or had the drug. On the other hand, buying GHB involves exchanging the drug for money or another item of value.
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You were aware that you had GHB and its nature as a controlled substance. Being aware is a crucial element when proving possession of drugs. Your knowledge of the presence of GHB and its nature as a controlled substance is critical.
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You had a sufficient amount of GHB for sale. You can only face possession charges under these statutes if you had more GHB than that for personal use.
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You had the intention of selling GHB. The intention to sell is the primary distinction between HSC 11351 and 11378. Your intention of whether or not to sell the drug is determined by the quantity of the drug and the presence of the drug paraphernalia. Items like weighing scales and baggies can easily prove that you intended to sell the drug.
You can face fewer possession charges if the prosecutor fails to prove your intent to sell GHB. Possession of GHB for sale is often charged as a felony. Felony charges can attract a jail term of two, three, or four years in a state prison. You can also face a fine that does not exceed $20,000. Offenders charged with possession of GHB with the intent to sell are not eligible for drug diversion programs.
The judge can grant you formal probation instead of serving a jail term. A probation sentence helps you serve part of your sentence through community service. A formal probation often lasts for three to five years and has strict conditions that can include:
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Avoiding committing other offenses
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Submitting to random alcohol and drug tests
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Avoiding visiting particular areas and interacting with people who contribute to criminal activity
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Regular check-ins with a probation officer
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Transporting or Selling GHB - Health And Safety Code 11352
It is an offense under HSC 11352 for you to transport, furnish, or sell a controlled substance. The police can arrest and charge you with this offense if there is sufficient evidence that you sold or transported GHB. You can also face charges under this law if you engage in the following activities:
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Import GHB in California
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Furnish someone else with GHB
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Give GHB away
The prosecutor must prove that you were aware of the presence of GHB and that the drug was in a usable amount. Sometimes, the prosecutor can develop a case of drug trafficking via sting and undercover operations. There will be sufficient evidence for you to face the charges if you sell the substance to an undercover officer.
You can face felony charges if you are guilty of transporting or selling GHB. Felony charges can attract a jail term of three, four, or five years in a state prison. Your sentence can be enhanced to nine years if you are guilty of transporting GHB across two or more state boundaries through California. The court can also impose a fine that does not exceed $20,000.
Aggravating factors in HSC 11352 can include the following:
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Selling GHB to a minor or a pregnant woman
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If you have a prior conviction for a drug-related offense or a violent felony
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Transporting or selling a large quantity of the substance
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Trafficking of GHB near a rehabilitation or drug treatment facility
Apart from fines and a jail term, a conviction for transporting or selling GHB can attract severe immigration repercussions. A conviction under HSC 11352 can lead to deportation or inadmissibility if you are a non-citizen. You should consult a skilled criminal defense attorney to help you fight these charges.
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Being Under GHB Influence - Health And Safety Code 11550
It is an offense under HSC 11550 for you to be under the influence of GHB without a valid prescription. If the prosecutor accuses you of being under GHB influence, the prosecutor should prove the following elements:
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You intentionally used GHB
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You were under the influence. You will be deemed to be under drug influence if your nervous system and brain are not functioning correctly after consuming the drug. You can undergo a drug recognition test if you are arrested for being under the influence. This will be done to ascertain if the drug involved is GHB.
You will face misdemeanor charges if you are guilty of being under the influence of GHB. Misdemeanor charges can attract a jail term that does not exceed one year in a county jail. The judge can order you to enroll in a drug diversion program depending on the circumstances of your case.
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Driving Under The Influence Of GHB - Penal Code 23152(f)
You will face the charges under Penal Code 23152(f) if you are guilty of driving under the influence of GHB drugs. This is a more serious crime than simply being under the influence. You can face driving under the influence charges if, after a DUID arrest, the judge establishes that you have GHB in your body.
The arrest and charge under Penal Code 23152(f) often start when you are pulled over at a DUI checkpoint. You will undergo a drug test if you exhibit behavior of drug use. This test will be done to establish the type and amount of drug you have consumed.
You will face misdemeanor charges if it is your first offense of driving under the influence of GHB. This charge can attract a jail term of not more than six months in a county jail. You can also face a fine that does not exceed $1000. The judge could also grant a misdemeanor probation in lieu of a jail term.
Sometimes, the judge can also order you to enroll in a DUI school for a period that does not exceed three months. Additionally, your driving privilege can be suspended for a period that does not exceed six months. You risk being convicted of a felony if the court discovers that you have several prior convictions for DUI or DUID.
Rape With Intoxication - Penal Code 261(a)(3)
Drunk sex is not consensual sex under the law in California. You can face rape while intoxicated charges under PC 261(a)(3) if you rape a victim while intoxicated with GHB. GHB affects the victim’s ability to consent to sex or to resist your advances. This offense is categorized under the broader class of ‘’date rape’’. Date rape is a sexual assault that occurs within dating or social situations. Rape with intoxication is categorized as date rape because it often involves people who are known to each other and where intoxicants are involved. Unfortunately, the law does not differentiate between date rape and different types of rape. The repercussions and punishment are the same regardless of the situation or relationship between the perpetrator and the victim.
This statute is not limited to circumstances where you intentionally intoxicate the victim. It is also applicable even if the victim becomes intoxicated deliberately. The crucial factor is whether the intoxication affected the victim’s ability to give informed, voluntary, and free permission to the sexual act.
Consent is an affirmative action under the law. You cannot allege that the victim consented because he/she did not resist. Consent can only exist if both of you agree to engage in sex. If the prosecutor accuses you of violating PC 261(a)(3), he/she must prove the following elements:
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You had sex involving penetration with someone else
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The victim was under the influence of GHB or other anesthetic substances
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The degree of intoxication was such that the victim was unable to resist
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You were aware, or you ought to have known, that the victim was too intoxicated to consent
Any non-consensual sex is regarded as rape and often charged as a felony. You will face the following penalties if you are guilty of violating Penal Code 261(a)(3):
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A jail term of three, six, or eight years is a state prison. You will only be considered for parole after serving at least 50% of your sentence.
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Sex offender registration for life
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A ‘’strike’’ penalty under the California ‘’Three Strikes’’ law
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Mandatory DNA submission
Your sentence can be enhanced if you have prior convictions or if there were several victims. The court can impose a jail term that does not exceed 25 years or life imprisonment if your crime counts as a third ‘’strike’’.
Defenses Against GHB Charges
The repercussions for a conviction of selling, possessing, manufacturing, and distributing GHB are severe and life-altering. You must be aggressive to challenge the charges. Some of the defenses you can use include:
It Was Entrapment
The police can do anything to uncover drug possession, manufacturing, distribution, and sale cases. They can carry out sting and undercover operations. Entrapment happens when you commit an offense because of coercion from law enforcement. You can only avoid the conviction if your attorney convinces the judge that the police lured you into committing the offense.
You Are A Victim Of Unlawful Search And Seizure
The police in California are often quick to investigate drug offenses, particularly when they receive information regarding drug possession and manufacture. They can come into your house or business premises without a warrant to look for the evidence. However, the law requires the police to respect your rights even if you are suspected of possessing GHB. The Fourth Amendment protects you against unlawful search and seizure. The police are not supposed to search your car without a warrant when they stop you. Your attorney can file a motion to dismiss your case if the evidence is based on an unlawful search and seizure.
Lack Of Evidence
You must go for a blood test to determine the amount of GHB before facing the charges. The testing officer must also have probable cause to believe you were driving under the influence. You can challenge blood test results by claiming that you were not under the influence.
Lack Of Knowledge
You must have known that the GHB existed for you to face charges for possessing GHB or possessing the controlled substance for sale. Sometimes, you might not know that you possess GHB. For example, someone could have placed GHB in your vehicle or house without your knowledge, only for the law enforcement officers to discover the drug. You might not even know that what you possess is a controlled substance. With the help of your attorney, you can present a defense based on a lack of knowledge.
Find a Criminal Defense Attorney Near Me
Despite being a prescription drug, GHB is often abused, thus heavily regulated under California law. It is an offense to possess, manufacture, distribute, sell, or be under the influence of GHB. If you violate the GHB laws, you can face serious consequences, including jail time and fines. You should contact an experienced attorney if you or your loved one is accused of an offense associated with GHB. The Los Angeles Criminal Defense Attorney has aggressive attorneys who can help you create and present a solid defense against your charges. Contact us at 310-564-2605 to speak to one of our attorneys.
