Gamma Hydroxybutyrate (GHB) is a central nervous system depressant abused alone or with alcohol for its sedation effects. Although GHB is used in the prescription medication XYREM for narcolepsy, its colorless and odorless nature makes it a commonly abused drug. The use of GHB produces serious side effects, including breathing difficulties, seizures, coma, and death. For this reason, the substance is highly regulated and is classified as a Schedule I depressant under the United States Controlled Substance act.

California law makes it a crime to possess, use, transport, manufacture or be under the influence of GHB. Possession of this substance for personal use is a misdemeanor, and you can avoid jail time through a drug diversion. However, transport, sale, and distribution of GHB can attract an arrest and serious criminal charges. In addition to spending time behind bars, a drug-related conviction can taint your criminal record and affect multiple aspects of your life.

If you or your loved one faces charges for a GHB-related offense, you will require the guidance of a skilled lawyer to fight the charges and avoid a conviction. The following are California crimes that involve the use, possession, and sale of Gamma hydroxybutyrate:

California Health and Safety Codes 11350 & 11377

You can face an arrest and charges under HSC 11377 or 11350 for possessing HGB without a prescription. You could be exempt from prosecution for possession if you have a valid prescription for XYREM from a licensed practitioner and you use the substance with strict compliance with your prescription.

GHB Falls under two schedules of a controlled substance. Therefore, the prosecutor will choose the statute to file your charge. Health and Safety Code 11377 is considered a lesser offense since it involves possessing less serious drugs. Before you face a conviction for possession of GHB, the prosecution must prove these elements of the crime:

  • You unlawfully possessed or exercised control over GHB without a prescription. The effort element that helps establish your guilt under HSC 11350 or 11377 is possession. For drug laws, possession can either be direct or through control over a substance. You could possess GHB if the substance is discovered in your body cavity or your bag.
  • You knew of the presence of the substance. You could not be convicted of illegal drug possession if you do not know of the presence of the drug.
  • You knew that the substance was GHB. GHB is a colorless, odorless substance. Therefore, it is possible not to know that the substance in your possession contained the controlled drug.
  • There was a sufficient quantity of GHB to be used. You will only be charged and convicted of possessing a controlled substance if it was enough to produce drug effects.

You can avoid a conviction if the prosecution fails to prove one element beyond a reasonable doubt. Possession of GHB without a prescription is a misdemeanor punishable by a year in county jail. However, if you have a prior conviction for a violent crime like murder, violent sex offense, or vehicular manslaughter, you could be charged with felony possession of GHB. A felony conviction, in this case, will attract a prison sentence of up to three years.

Whether you are convicted under HSC 11350 or 11377 will depend on the specific circumstances. The difference between the punishment under these statutes is fine. HSC 11350 attracts fines of up to $20,000. On the other hand, GHB possession under HSC 11370 is punishable by a $1,000 fine.

Drug Diversion for GHB possession

Drug diversion is an alternative sentence for low-level offenders facing drug possession charges. After a conviction for misdemeanor possession of HGB, the court can send you to a drug diversion program instead of jail. You may be eligible for the drug diversion program under Proposition 36 or PC 1000 under the following circumstances:

  • You have no prior conviction for possession or intent to sell GHB.
  • You have no record of parole or probation violations.
  • You have not participated in the diversion programs in five years.
  • You do not have a prior felony conviction within five years of your possession charges.

Drug diversion programs have programs aimed at treatment and rehabilitation to avoid future drug use and drug-related crimes. If you complete the diversion program successfully and show signs of rehabilitation, the court will dismiss your possession charge.

Possession for Sale of GHB

Under California HSC 11351 and 11378, it is illegal to purchase or possess a controlled substance with an intent to sell, including GHB. The elements used to ascertain your liability under these statutes include:

  1. You possessed or Purchased GHB. Under HSC 11351, drug possession can be actual, constructive, or joint. If the prosecutor can prove that you had or controlled the drug, they can prove your guilt. On the other hand, purchasing a drug involves exchanging the substance for money or another valuable item.
  2. You knew that you had the drug and its nature as a controlled substance. Knowledge is a key element when proving drug possession. Therefore, your knowledge of the drug’s presence and nature as a controlled substance is critical.
  3. You possessed enough quantity of the drug to sell. If you face charges for possession of GHB for sale, the quality of the drug must be more than enough for personal use.
  4. You intended to sell the drug. The final element differentiating PC 11350 and 11351 is the intent to sell. Whether or not you intend to sell the drug is based on its quality and the presence of drug paraphernalia. The prosecutor can easily prove that you intended to sell the substance if you have items like baggies and weighing scales.

If the prosecution fails to prove the intent to sell, you can be charged with the lesser crime of possession for personal use. A conviction for GHB possession for sale is a felony punishable by two, three, or four years in state prison. Additionally, the court could impose fines of up to $20,000. You must understand that a conviction for possessing GHB with an intent to sell is not eligible for drug diversion. 

Instead of spending your entire sentence in prison, the court may send you to formal probation. With a probation sentence, you will serve part of your sentence on community service. Probation for a felony conviction lasts three to five years and has strict conditions, which could include the following:

  • Regular check-ins with a probation officer.
  • Random alcohol and drug tests.
  • Avoid committing other crimes.
  • Avoid frequenting certain areas and interacting with individuals who contribute to criminal activity.

Transporting or Selling GHB

California Health and Safety Code 11352 makes it a crime to transport, furnish or sell a controlled substance. You could be arrested and charged with this offense if there is evidence that you transported or sold GHB. Other acts that could attract these charges include:

  • Giving the drug away.
  • Furnishing another person with the drug.
  • Imported GHB into California.

After proving that you engaged in any of these acts, the prosecutor must further show that you knew of the presence of the drug and that the drug was usable. The prosecution builds a case of drug trafficking through sting and undercover operations. When you sell the substance to an undercover officer, there will be enough evidence to convict you of the offense.

A conviction for the transport or sale of GHB is a felony punishable by a prison sentence of three, four, or five years. If the drug is moved across two or more state lines through California, your sentence could be increased to nine years. Additionally, you may need to pay fines not exceeding $20,000.

The following are aggravating factors in your HSC 11352:

  • Trafficking of GHB near a drug treatment or rehabilitation facility.
  • Sale or transport of a large quality substance.
  • You have a prior conviction for a drug-related offense or violent felony.
  • You sold the drug to a pregnant woman or a minor.

In addition to incarceration and fines, charges for the sale and transport of GHB attract serious immigration consequences. If you are an immigrant in the United States, a conviction under HSC 11352 could result in deportation or inadmissibility. Therefore, you must seek expert legal guidance to fight these charges.

Being Under GHB Influence

You violate HSC 11550 if you are under the influence of GHB without a valid prescription. A conviction under this statute is based on the following elements:

  • You willfully used GHB. Intoxication of willful if you use the drug intentionally.
  • You were under the influence. You are considered to be under drug influence if its use affects your nervous system and brain function. If you are detained for being under the influence, the court will perform a drug recognition test to determine whether the drug is GHB.

A violation of HSC 11550 is a misdemeanor that attracts a one-year jail sentence. Depending on the circumstances of your case, you can be sent to a drug diversion program that offers rehabilitation and much-needed substance abuse treatment.

Driving Under the Influence of GHB

Driving under the influence of drugs is a crime charged under California Penal Code 23152(f). This offense is more serious than just being under the influence. If, after a DUID arrest, the court finds GHB in your system, you could be charged with driving under the influence of the substance.

An arrest and prosecution under this statute often begin when your vehicle is stopped at a DUI checkpoint. If your conduct indicates drug use, a drug test is performed to identify the type and quantity of drug in your blood. A first conviction for driving under the influence of GHB is a misdemeanor that attracts a six months jail sentence of up to $1,000 fines and probation.

The court may order you to enroll in DUI school for three months. Additionally, you can lose your driver’s license through a six-month suspension. If you have multiple prior convictions for DUI or DUID, you risk facing a felony conviction. 

Defense Against GHB-Related Charges in California

The consequences of a conviction for possessing, selling, distributing, and manufacturing GHB are serious and sometimes life-changing. Therefore, you must be aggressive to fight the charges. The following are common defenses you can use against GHB-related crimes:

Possession of a Valid Prescription

GHB was first manufactured as an aesthetic due to its ability to create a reversible comma and induce sleep. It was later marketed for the treatment of depression and as a hormone stimulator. Although the drug is currently classified as a restricted substance, it is a component used to treat sudden loss of muscle tone and excessive daytime sleepiness.

When you face an arrest for personal possession of GHB, the prosecutor must prove that you did not have a valid prescription. If you can produce a valid prescription for XYLEM in your name, you can avoid a conviction for possessing GHB.

Lack of Knowledge of Possession

When you are charged with possessing a controlled substance in California, your knowledge of the presence of the drug must be clear. Possession can either be direct or through control of the area where the drug is discovered. There are some situations where you may not be aware that the drug is in your area of control. In other situations, multiple people may have access to an area which could prompt an arrest for all of you.

If the prosecution lacks enough evidence to support the theory of your knowledge of the drug’s presence, you will not be found guilty of illegal GH possession.

Lack of Intent to Sell

Simple possession of GHB is a misdemeanor that you can shake off through a drug diversion program. However, if you are arrested and charged with transporting or selling the substance, you could face a felony conviction and serious penalties. Even when an officer does not catch you selling or attempting to exchange the substance for money, the prosecution could file charges for the sale of GHB based on the quantity of substance in your possession.

Under these circumstances, you can fight the charges by arguing that you did not have paraphernalia to indicate the intent to divide the drug into small quantities or sell it. Using this information, you can convince the court that the drug in your possession was for personal use. This will reduce your charge to simple possession.

No Evidence of Being Under the Influence

In addition to possession and sale, it is a crime to drive under the influence of GHB. Before a conviction for DUID under PC 23152(a), you must have undergone a blood analysis test to determine the type and quantity of substance in your blood. Additionally, the officer who requested the test must have had probable cause to believe that you were operating under the Influence. A probable cause is derived from an officer’s observation of your conduct while driving and after a stop.

If you can prove that there was no probable cause for your DUID stop or arrest, you have a chance to fight the charges. Additionally, you can argue that you were not under the influence by attacking the results of the blood and urine tests used.

Illegal Search and Seizure

In California, law enforcement officers are aggressive when investigating drug crimes, especially when they receive anonymous drug manufacture and possession tips. Therefore, it is not uncommon for officers to come to your home or business premise without a warrant to find evidence of the drugs.

However, even when you are suspected of committing a serious crime like the manufacture of GHB, the police officers must respect your constitutional right against illegal search and seizure. If you are stopped at a traffic stop, the police must not search your vehicle without probable cause that you were carrying a controlled substance. If your GHB-related charges are based on illegal search and seizure, you can file a motion to dismiss the evidence collected during the illegal search.

Entrapment

There is nothing law enforcement officers will not do to uncover incidences of drug possession, sale, and distribution. This can be through carrying out the sting and undercover operations. Entrapment occurs when you commit a crime due to coercion from police officers. You can avoid a conviction for GBH crimes by proving that the police officers lured you into committing the alleged crimes through threats or coercion.

Find a Skilled Criminal Defense Lawyer

GHB is a colorless drug that produces sedative effects. The substance has been used for the treatment of loss of muscle tone and excessive daytime sleepiness. However, its high prevalence of abuse has made it a controlled substance in California. Therefore, the drug’s possession, sale, distribution, and manufacture may attract arrest and criminal charges for violating different Health and Safety Code statutes.

Violation of California GHB laws will attract charges ranging from misdemeanor possession to felony distribution and sale. A conviction for these offenses will attract serious penalties, including incarceration and fines. Additionally, you will suffer severe collateral consequences with one of these convictions on your record. netfucks

Hiring and retaining a knowledgeable criminal defense lawyer is critical when battling GHB-related Charges. At Los Angeles Criminal attorney, we will protect your rights and help you build a solid defense against your charges. We serve clients seeking legal guidance and representation to fight drug charges in Los Angeles, CA. Contact us at 424-333-0943 today to discuss the details of your case.