Gamma-Hydroxybutyrate is a central nervous system medication used to treat patients experiencing sleep challenges. Nevertheless, some people use it unlawfully. Its odorless and colorless characteristic makes it possible for the drug to be mixed with drinks. The Food and Drug Administration classifies the drug as a Schedule I substance due to its potential for abuse and use as a date-rape drug and club drug. If taken in high dosages, it can cause unconsciousness, aggressive conduct, and respiratory challenges. Consequently, California law enforcers take crimes involving GHB seriously, and the crime could lead to life-altering penalties. In this article, you will learn about different laws involving GHB, penalties and how to fight the crimes. 

Simple Possession of GHB 

For you to face a conviction for violating Health and Safety Code Section 11350(a), the prosecution team should prove beyond any reasonable doubt the elements that include the following:

  • You had controlled substances
  • You had no prescription allowing you to possess GHB.
  • You knew about the controlled substance’s existence
  • You knew of the GHB’s nature
  • The GHB was in a usable amount

Possession means having control over a controlled substance, even without holding or touching it. For instance, constructive possession of GHB occurs when it is in:

  • Your closet
  • Storage facility
  • Your bag, even when the substance is in a car trunk or locker

Agreeing to purchase GHB does not constitute having control.

To be found guilty of breaching HS 11350(a), you should know the following:

  • The existence of the illegal drug
  • The fact that GHB is a controlled substance and illegal

In other words, the prosecution team should demonstrate that you understood that the drug is prohibited.

A usable amount means that the quantity is sufficient for your use. Debris or useless traces are not considered usable amounts. On the contrary, no usable amount needs to contain enough potency to intoxicate you.

Penalties and Consequences

Here are the potential penalties for these charges:

  • A misdemeanor conviction is punishable by up to one year in jail, a fine not exceeding $1,000, summary probation, and completion of a drug diversion program.
  • The crime becomes a felony if you have a previous sex crime or serious felony conviction. The felony carries a potential sentence of 36 months in county jail, $10,000 in fines, and formal probation.

Under Proposition 36, an arrest for possession of hard drugs, including  GHB, and two previous drug-related convictions can result in your prosecution for a treatment-mandated felony. After completing treatment, the CH court will drop your criminal charges. Otherwise, you could serve a term of up to three years.

Defenses to a HS 11350(a) Violation

Some of the potential defenses you and your defense lawyer can use to fight your criminal charges include the following:

  • Valid prescription — You can use a valid prescription to defend against drug crime charges. Your attorney can help you prove that a dentist, physician, veterinarian, or podiatrist prescribed your medication. They can also assist you in collecting the relevant documentation to support your claim.  
  • Unlawful search and seizure — The 4th Amendment safeguards you against unlawful searches and seizures. Suppose law enforcement searched your person, vehicle, home, or workplace without a valid warrant or legal exception. In this case, your lawyer can file a motion to suppress the illegally acquired evidence. If the judge grants the request, the evidence becomes inadmissible in court and could result in a case dismissal. 
  • Absence of knowledge — The prosecution must prove you knew about the GHB. You can argue that you genuinely did not know. For instance, another person might have left the drugs in your vehicle or put them in your bag without informing you.  

Possession for Sale of Controlled Substances

California HS 11351 HS prohibits possession of GHB with the motive to distribute. 

Before your conviction, the prosecution team must demonstrate the facts of the crime below:

  • You were in possession of or bought GHB
  • You were aware that you acted so
  • You were aware of the nature of the substance
  • You had enough possession of GHB to distribute or use

Also, you either:

  • Had possession of GHB with the motive to sell
  • Bought the controlled substance with the motive to resell it

Knowledge and Possession

In California, possession is the same as control over the illegal narcotics. Control occurs in forms that include the following:

  • Actual possession — Actual possession means carrying or holding the substance on you, like in a briefcase or backpack.
  • Constructive possession—Constructive possession refers to when you have access to and control over the controlled substance, like storing or hiding it in a car or drawer.
  • Joint possession — Joint possession involves sharing control with one or more individuals, either a roommate or a spouse.

The judge and jury could deduce that you were aware you had GHBs by the fact that you had the drugs. They can also assume knowledge depending on your behavior when authorities discover the drugs.

There was Sufficient Controlled Substance to Use or Distribute

Residue or useless traces of a substance cannot support your HS 11351. The amount of the controlled substance must be sufficient for use by those who may purchase it

Nevertheless, the law does not require a sufficient quantity to have an impact on the user.

What is Intent to Sell

When facing HS 11351 charges, the prosecution team’s case focus is on whether you planned to sell the controlled substance.

However, it does not imply that you must be the one who intends to sell GHB personally. The judge could find you guilty of this crime even if you intended to sell GHB indirectly through someone else.

If the prosecution team demonstrates that you had drugs but fails to prove your intention to sell GHB, the judge or jury may sentence you for a lesser charge, like personal possession per HS 11350.

Differences Between Possession for Sale and Personal Use

Whether someone intends to sell the substance or plans to use it personally is not always apparent. Without voluntary confessions to the offense, the prosecution team infers your intention through circumstantial evidence and professional expert witnesses, including the following:

  • The amount of GHB — If you have more controlled substances than an ordinary individual would personally use, law enforcement or a prosecution team can assume that your possession of the drugs was for sale. The challenge with this legal claim is that most habitual drug consumers stock up whenever they have the means to.
  • The drug’s packaging — The GHB could be for sale if the defendant has packaged it in many different balloons, baggies, bindles, bundles, or other forms, usually related to drug sales.
  • Drug paraphernalia — Your possession of drug paraphernalia, by itself, is an offense under HS 11364 and can potentially harm your case. The presence of paraphernalia materials like syringes or pipes signals drug use could support your assertion that the  GHB was for personal use. Nevertheless, you could face HS 11351 charges if law enforcement discovers your possession of items, like measuring instruments, weighing scales, plenty of cash, mainly in tiny denominations, and other types of equipment that can separate, dilute, or package controlled substances.

Penalties and Sentencing

Violation of HS 11351 is a felony, punishable by the following:

  • Two (2), three (3) or four (4) years in county jail
  • A maximum fine of $20,000
  • Felony probation

If the court grants probation, you must engage in community service, complete substance abuse education, and meet with a probationary official.

There are also sentencing enhancements if you are found guilty of purchasing or possessing GHB for sale and you have a previous felony conviction for another drug offense involving more than personal use. In that case, you will face an additional three years for every previous felony conviction.

A conviction for this offense disqualifies you for any drug diversion program, a court program where the court dismisses your case after completing rehabilitation. However, your aggressive lawyer can work to reduce your charges to simple possession charges and request the judge to permit you into the diversion program per drug court, Prop 36, or PC 1000.

HS 11351 Violation Defenses

Some of the common strategies to fight these charges include the following:

  • Illegal search and seizure — Law enforcement must adhere to strict regulations when searching you, your car, or your home. If the police perform an unlawful search and seizure, the court might dismiss the evidence obtained.
  • Absence of intent — The prosecution team should prove your intention to sell the controlled substance, not just that you were in possession. If your lawyer can demonstrate that the GHB was for individual use, this could reduce your charge to a California misdemeanor possession charge.
  • Police entrapment — Police officers should not trick or pressure a person into committing an offense against their will. It is a valid defense if undercover informants or officers coerced you into selling or handling the controlled substance. 
  • Insufficient proof — The prosecution team must prove all elements of the alleged violation beyond a reasonable doubt. If there is no direct proof connecting you to the controlled substance or indicating you plan to sell, they may fail to obtain a conviction.

Transporting GHB

HS 11352 makes it illegal to transport GHB. The offense involves willfully moving a usable quantity of the drug for its eventual sale. The elements of this crime include the following:

  • You sold, gave away, administered, or furnished the illegal drug or imported it into the state or transported it for sale.
  • You were aware of the existence of GHB
  • You were aware of the nature of the GHB, that it was illegal
  • During the transportation of the substance, you planned to sell it directly or indirectly through someone else.
  • The controlled substance was in a usable amount.

The prosecution team has the burden to prove every element of the crime beyond a reasonable doubt.

Transporting GHB means moving it from point A to point B, no matter the distance. The mode of transport does not matter.

Penalties and Criminal Consequences

The transportation of GHB is a felony, with first-time offenders receiving punishment as follows:

  • Three, four, or five years in jail under California’s realignment program
  • A fine not exceeding $20,000
  • Formal felony probation

If it was discovered you transported the controlled substances across two or more county lines within the Golden State, your jail sentence increases to three, six, or nine years.

A conviction could result in your deportation as an immigrant.

Legal Defenses

Potential defenses to transporting GHB include the following:

  • Police misconduct — Law enforcement agents are expected to act in a manner that does not violate your legal rights. Otherwise, the evidence obtained could be inadmissible in court.
  • You were unaware of the existence of the GHB.
  • Law enforcers engaged in entrapment and coerced you into violating the law.
  • You did not know the substance was a controlled substance
  • You had a prescription for GHB
  • You are a victim of mistaken identity

Being Under the Influence of GHB 

California HS 11550 is the statute that makes it an offense to be under the influence of GHB.

For the prosecution team to secure a conviction for this charge, they must show the following:

  • You willfully took GHB
  • You were deliberately under the influence of GHB

Per this statute, you engage in conduct willfully if you act deliberately or on purpose.

Based on this law, the use of GHB should be current. The use should have occurred before your arrest. Judges determine on a case-by-case basis.

The law considers you under the influence of GHB if it impacted your:

  • Brain
  • Nervous system
  • Muscles 

The prosecution team must prove you were under the influence in a detectable manner. Proving misconduct or impairment is not a requirement for securing a conviction. When the police arrest you on suspicion of being under the influence, they work with a drug recognition expert. The DRE comes to the incident scene and uses a twelve-step process to review whether you are under the influence of a controlled substance.

Penalties and Repercussions

Violating HS 11550 is a misdemeanor, punishable by an incarceration of 12 months in county jail.

A conviction could also lead to an immigrant being marked inadmissible or deported.

You may be eligible for a drug diversion program, which involves drug rehabilitation and drug counseling. These drug programs allow individuals who have been convicted of non-violent drug crimes to complete their sentences in drug treatment programs instead of county jail or prison.

Driving Under the Influence of GHB

Vehicle Code Section 23152a makes it illegal to drive under the influence of drugs. The law applies when drugs have impaired your mental and physical abilities to a degree that you can no longer operate the car as a careful, sober individual.

Before the judge convicts you of this offense, the prosecutor must show that you drove a car and GHB had intoxicated you at the time of driving.

A first-time, second-time, and third-time conviction are California misdemeanors. However, penalties increase with every subsequent DUI conviction.

A first-time conviction attracts the following maximum penalties:

  • Five years of informal probation
  • DUI school
  • One thousand dollars in fines
  • A six-month county jail sentence
  • Six months of driver's license suspension

A second DUI conviction within the lookback period (ten years of the first crime) attracts the following penalties:

  • Five years of informal probation
  • Attending DUI school for thirty months
  • One thousand dollars in fines
  • A one-year county jail sentence
  • Two years of driver's license suspension

You can fight this charge by arguing the following:

  • Bad driving does not indicate DUI — The prosecution team focuses on your driving pattern and could testify that you were operating your car in a manner similar to a drunk individual. Your defense lawyer can fight the allegation by testifying about how you drove safely and properly. They can also urge that sober people commit most of the traffic violations. 
  • Intoxication signs do not mean DUI—The arresting police officer will testify you were under the influence because you exhibited objective signs and symptoms, including watery eyes, a flushed face, an unstable gait, or slurred speech. You can rebut the claim by arguing these signs were due to either fatigue, eye irritation, a cold, or allergies.

Find an Aggressive Drug Crime Lawyer Near Me

Law enforcers in San Jose take drug crimes involving GHB seriously, and a conviction could result in lengthy incarceration, hefty fines, and a criminal record. The penalties you face depend on case facts like simple possession, being under the influence, or drug trafficking. The difference between facing life-altering penalties when charged with a drug crime could be as simple as consulting a skilled defense lawyer.

At California Criminal Lawyer Group, we know the criminal judicial process can be confusing. We can help ensure you understand the criminal charge you face, the potential penalties, and how to fight the charges effectively.  We can also listen to your side of the story and gather evidence to develop the most effective legal defense, leveraging our dedication and experience to achieve the best possible outcome in your case. Please contact us at 408-622-0204 to schedule your confidential and free case review.