Crimes involving Gamma Hydroxybutyrate (GHB) are subject to stringent drug laws in California. At the state level, GHB is a Schedule I controlled substance, meaning that it is believed to be highly addictive and has no accepted medical use except in limited exceptions. Due to this categorization, the crimes related to GHB are considered to be of specific seriousness.
These crimes include simple possession, manufacturing, and distribution, and in some cases, GHB is connected to more serious offenses. Every crime has its own punishments, and there are certain legal conditions that prosecutors should fulfill to convict a person.
This guide will help you learn the primary forms of GHB-related crimes in California, how the law defines them, and the significance of knowing the charges and potential defenses. Some of the crimes that involve GHB include:
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California GHB Possession Charges
To be charged with Gamma Hydroxybutyrate (GHB) in California, one must understand how the state law categorizes the offenses of possession. California law draws a distinct line between the simple possession of the drug for personal use and the possession of the drug with the intent to sell. The punishments for such crimes vary widely, as do the legal approaches. There are also certain elements that prosecutors must establish before achieving a conviction.
GHB Simple Possession (Health and Safety Code 11350 and 11377)
If caught in possession of GHB with no valid prescription, you can be prosecuted under Health and Safety Code (HSC) 11350 or 11377. The two laws outlaw the illegal acquisition of controlled substances, such as GHB. Although HSC 11377 does not apply to all minor drug offenses, it applies to this substance.
To secure a conviction against you, the prosecution has to prove four things beyond a reasonable doubt:
- Unlawful Possession Or Control: This could be actual (direct possession), constructive (under your control, such as in your home or car), or joint (shared with others)
- Knowledge of Presence: You have to have known that the substance was present. As an example, when GHB was put in your bag without your knowledge, this element would not be fulfilled
- Knowledge of Nature: You should have known the substance was a controlled drug, although you may not have known its specific name
- Usable Quantity: It must have contained a quantity of the drug sufficient to cause drug effects. The amount of traces or unusability fails to satisfy this condition.
Conviction should not be possible without proving any of the elements. When convicted of misdemeanor possession, a jail sentence of one year and a fine of up to one thousand dollars may be imposed. But those convicted of a violent felony before, like murder or some sex offenses, can be charged with a felony and sentenced to up to three years in prison.
Drug Diversion Programs of GHB Possession
For low-level offenders, California law offers an alternative to jail in the form of drug diversion programs. Such programs focus on treatment and rehabilitation rather than incarceration and appear in the form of Propositions 36, Penal Code (PC) 1000, and Drug Court.
To be eligible, a person must generally meet these requirements:
- No prior conviction for possession with intent to sell
- No prior diversion within the past five years
- No violations of parole or probation
- No violent felony conviction within the past five years
When accepted, the treatment can be completed, and the possession charge may be dismissed. This eliminates the possibility of a conviction being placed on a criminal record, minimizing the impact in the long term on employment, housing, and professional licensing.
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GHB Sale (Health and Safety Code 11351 & 11378)
The intent to sell GHB is a felony offense in HSC 11351 or 11378. The definition of a sale is the exchange of GHB for money or any other valuable item.
To obtain a conviction, prosecutors need to establish:
- You were in possession of or bought GHB
- You were aware of the presence of the drug and the fact that it was a controlled substance
- The quantity was more than what would be considered personal use
- You wanted to sell the drug
Direct evidence is seldom used to prove intent. Instead, prosecutors use circumstantial evidence, including the fact that GHB was found in large amounts, multiple baggies, weighing scales, large amounts of money, or weapons used in drug sales. The location of the drug transactions can also be used to prove the case.
If intent to sell is not provable, defense counsel can defend against it by arguing that it should be reduced to simple possession, which has much lighter penalties.
Possession with intent to sell is a punishable offense that can be sentenced to two, three, or four years in prison, with fines of up to $20,000, and felony probation with severe restrictions, including frequent check-ins, random testing, and travel or association restrictions. Notably, in contrast to simple possession, defendants found guilty of possession with the intent to sell cannot be placed in diversion programs.
When GHB Crimes Become a Felony
California law does not just stop at possession of Gamma Hydroxybutyrate (GHB). Some crimes are categorized as felonies and have much more severe punishment. These are crimes that demonstrate the will of the state to prevent the distribution and abuse of controlled substances, and they may lead to long sentences, fines, and other legal repercussions.
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Carrying or selling GHB (Health and Safety Code 11352 and 11379)
It is a felony to carry, supply, or sell GHB under Health and Safety Code (HSC) 11352 and 11379. These statutes encompass a broad scope of behavior, such as the act of giving the drug away, supplying the drug to another individual, or importing the drug into California. Transportation may occur even when GHB is simply moved between two places with the purpose of being distributed, but no money is transferred.
To secure a conviction, the prosecutors need to demonstrate that you engaged in one of these illegal acts, knew the presence of the drug, and that the substance was of a usable amount. Sting operations or undercover investigations are frequently used to build cases, and a sale to an undercover officer can be especially compelling evidence.
The punishments for a conviction under these laws are harsh. A simple offense may lead to three, four, or five years in state prison. Should prosecutors be able to demonstrate that GHB was moved across two or more county lines with the purpose of distribution, the sentence can be extended to up to nine years. Up to $20,000 in fines can be given as well.
Some aggravating circumstances may lead to more severe sentences. These aggravating factors include:
- Trafficking around a rehabilitation center
- Distributing large quantities of the drug
- A prior drug or violent felony conviction
- Selling to vulnerable groups like minors or pregnant women
In the case of immigrants, a conviction based on HSC 11352 has particularly severe repercussions, such as the possibility of deportation or inadmissibility.
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Carrying GHB When Armed (Health and Safety Code 11370.1)
The other felony crime occurs under HSC 11370.1, which criminalizes the possession of a controlled substance like GHB, in addition to being in possession of a loaded and operative firearm. The law considers the presence of drugs and weapons as a more dangerous threat to the safety of people.
To be convicted, the prosecution has to prove that you had GHB, were aware of its presence, knew it was a controlled drug, and had access to a loaded and operable gun. The gun need not be in possession during arrest; it is only necessary to have it close to the drugs, that is, in the same place.
Any breach of this law is a felony and is punishable by two, three, or four years in prison, with fines of up to $10,000. In addition to jail and fines, such a conviction leaves a felony record with long-term legal and personal implications.
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GHB and Impaired Behavior: Use and Driving Under the Influence
The California legislation not only forbids the possession and distribution of Gamma Hydroxybutyrate (GHB) but also deals with the risks of being under its influence. These crimes are not treated lightly, particularly when they concern driving a motor vehicle, and may result in jail time, fines, driving suspension, and long-term effects.
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Under the Influence of GHB (Health and Safety Code 11550)
Health and Safety Code (HSC) 11550 provides that it is a crime to be under the influence of GHB without a valid prescription. You can be charged even when you use it beyond the stipulated amount with a prescription.
To convict, prosecutors need to establish two things: that you willfully used GHB, that is. That you knowingly consumed it; and that you were under the influence, and that the drug had an impact on your nervous system or brain activity. The law, however, exempts involuntary use, including the situation when GHB is administered unknowingly, which is commonly associated with sexual assault.
Law enforcement agencies commonly use drug recognition tests to determine impairment. Upon conviction, you will be charged with a misdemeanor that is punishable by a maximum of one year imprisonment in jail and a maximum of $500 in fines.
In certain instances, however, a person can be admitted to a drug diversion program, where they can receive treatment and rehabilitation rather than being sent to jail. The criteria include criminal history and the circumstances of the case.
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Driving under the Influence of GHB (Vehicle Code 23152(f))
GHB impaired driving is punishable under Vehicle Code (VC) 23152(f), which includes driving under the influence of drugs (DUID). This crime is regarded as worse than a general drug influence due to the dangers that come with driving under the influence. The side effects of GHB, such as drowsiness, lack of concentration, and seizures, are serious factors that impair the capacity to drive safely.
Most DUI investigations begin with a traffic stop or checkpoint. If officers suspect drug use, they may order a blood test to detect controlled substances. There is no legal limit to drug levels, as is the case with alcohol-related DUIs.
Instead, prosecutors will frequently use the outcome of the blood test and the testimony of a drug recognition expert (DRE) to demonstrate that GHB affected your capacity to drive as a prudent individual would do in the same circumstances.
A misdemeanor is typically a first offense of DUID with GHB. Punishments can be:
- Informal probation
- A fine of not more than $1,000
- A three-month DUI education program
- A six-month suspension of a driver's license issued by the Department of Motor Vehicles (DMV)
Although a first-time offense does not necessarily necessitate jail, the consequences of a second, third, or fourth conviction become more severe.
For repeat offenders, punishments, including longer jail sentences, higher fines, and extended license suspensions, become more severe. A fourth conviction within the statutory period is classified as a felony, and is punishable by a prison term of sixteen months to three years and fines up to $5000.
The threat of being deprived of driving rights and the imposition of criminal fines over a long period of time prove that California courts and the DMV take the issue of driving under the influence of GHB seriously.
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Intoxication Defined Rape
Sexual assault when the victim is drunk is one of the most serious crimes associated with GHB. According to California Penal Code (PC) 261(a) (3), rape is committed when the victim is intoxicated by GHB or any other substance to the point of being unable to give or withhold consent. This is commonly known as date rape; however, the law does not differentiate between the two, and fines are equivalent to any other rape case.
Legal Elements of the Crime
To secure a conviction, prosecutors have to demonstrate:
- Penetrative sexual intercourse
- The victim was intoxicated by GHB or another substance
- The victim was too impaired to consent or resist
- The accused was aware or ought to have been aware of the condition of the victim
The California law dictates that the consent must be conscious, voluntary, and affirmative; absence of resistance is not consent.
Penalties and Consequences
Rape when an individual is intoxicated is a felony that is punishable by three, six, or eight years in state prison. It is also a conviction that necessitates lifetime sex offender registration under Penal Code 290 and is a strike under the Three Strike law. Prior convictions, multiple victims, or third strikes may add to the sentence, up to 25 years to life imprisonment.
How to Legally Fight GHB Accusations
Being charged with GHB in California is not an easy task, yet being arrested is not the same as being convicted. You do have rights, and with the assistance of a qualified defense counsel, several tactics can be employed to combat the charges.
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Controverting the Case of the Prosecution
You had a Valid Prescription
A valid prescription is one of the defenses against GHB crime accusations. Your lawyer can fight GHB crime accusations by demonstrating that you were prescribed Xyrem and used it correctly; the prosecution will not be able to establish illegal possession.
You did not Know That You Were In Possession of The Drug
The other defense is ignorance. The prosecutors will have to establish that you were aware that the drug was in your possession and that it was a controlled substance. Should a person put GHB in your bag or car without your knowledge, or if you did not know what the substance was, this can be used to nullify the charge.
You were using GHB for Personal Use
Regarding possession-for-sale charges, your attorney can contend that there was no intent to sell. When the GHB is to be used personally and no sales tools (such as baggies or scales) are found, a felony may be reduced to a misdemeanor.
You were stopped with no Probable Cause
In under-the-influence or DUI cases, your lawyer can object to test results, observations by the officers, or claim that there was no probable cause to stop. It may also be mistaken identity when GHB was falsely charged against you.
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Protecting Your Rights
Illegal Search
GHB cases are strong on constitutional defenses. Any evidence acquired as a result of an illegal search and seizure can be suppressed, undermining the prosecution's case.
You were a Victim of Entrapment
Your lawyer could argue that you are a victim of entrapment if the police coerced you into committing a crime that you would not have committed otherwise.
Find a Reliable Defense Attorney Near Me
GHB-related crimes are taken seriously in California, and the punishment can include jail time, hefty fines, and permanent consequences, including sex offender registration. Facing GHB-related charges without skilled legal representation can have life-altering consequences. An experienced lawyer can protect your rights, uncover flaws in the case against you, and work to achieve the best possible result, be it dismissal, lighter charges, or other forms of punishment.
When it comes to GHB crimes, you should not wait until it is too late. At Darwish Law, our lawyers in Santa Ana are ready to fight for your rights and help you build a solid defense. Contact us today at 714-887-4810 for a confidential consultation and reliable legal advice.