Gamma Hydroxybutyrate, also abbreviated as GHB, is a CNS (central nervous system) drug that doctors prescribe mainly to patients with sleep disorders. Although it is a prescription medication, GHB is often abused and used unlawfully, especially in nightclubs, due to its effects once it is in your system.
Due to its odorless and colorless nature, it is easy for someone with malicious intentions to mix it with your drink, making you unconscious. Because of this and other serious side effects this drug causes, law enforcement officers and prosecutors treat GHB-related drug offenses harshly.
If you are under arrest for a crime that involves GHB, you could be at risk of misdemeanor or felony charges, depending on the facts of your case. The best way to protect your best interest and increase your odds of obtaining a favorable outcome if you are in this situation is to retain the services of a defense attorney.
Read on to understand what GHB is in the eyes of the law and the various crimes that involve this drug.
What is a GHB?
Also commonly known as "G," "Liquid X," or "Liquid E," GHB is a controlled drug substance that falls under both Schedule III and Schedule I of the Controlled Substances Act. Drugs classified as Schedule I have no known medical benefit and are very likely to cause dependence and abuse because of their side effects.
On the other hand, Schedule III drugs are those that have less abuse and dependence potential than Schedule II and Schedule I drugs, but they have medically accepted uses. GHB falls under both Schedule III and Schedule I controlled drug substances because the FDA (Federal Drug Administration) approved Xyrem (a GHB-made drug) to help patients with medical issues such as:
- Sleep disorders.
- Narcolepsy.
Although GHB can help patients with these medical conditions, it produces severe side effects that make it prone to abuse and illegal use. Some of these severe side effects include the following:
- Vomiting.
- Dizziness.
- Loss of consciousness.
- Muscle spasms.
- Sweating.
- Comma.
- Hallucinations.
- Amnesia.
Because of the severe side effects associated with this drug, many criminals, particularly sex predators, use it to make their targets or victims semi-unconscious and lose control of their bodies. Regardless of whether you had the intent to use the drug to commit a sex crime or any other offense, a charge that involves GHB could result in severe consequences, including several years of incarceration and hefty fines.
If you are under investigation or charged with a crime that involves GHB, a skilled and experienced defense attorney can help you stay on the safe side of the law.
An Overview of Drug-Related Offenses that Involve GHB
There are various drug-related crimes that the prosecutor could file against you when GHB is involved. The specific offense the prosecutor will file against you will depend on the circumstances and facts of your unique drug case. Below is a brief overview of some of these crimes:
Possession of GHB
The prosecutor could charge you under Health and Safety Code (HS) 11350 or 11377 if you had GHB in your possession without an approved medical prescription. Specifically, HS 11377 makes it a crime to have a controlled drug substance in your possession without a valid prescription. On the other hand, HS 11350 makes it a crime to have any controlled substance in your possession, including GHB.
If you have a valid medical prescription from a licensed doctor to use Xyrem to treat your illness, the prosecutor will not have any charges against you under any of these statutes. To secure a guilty verdict against you for illegal possession of the drug GHB, the prosecutor must prove the following facts at trial:
- You had GHB in your possession without a valid prescription.
- You were aware of the substance's presence.
- You were aware the substance in question was GHB, a controlled drug substance.
- The quantity of the substance was sufficient for personal use.
Whether the prosecutor files your offense under HS 11350 or HS 11377, you could avoid conviction if the prosecutor cannot prove the above facts to the court beyond a reasonable doubt. However, if you are guilty of the offense, you should expect the following misdemeanor penalties:
- A jail term of up to one (1) year.
- A fine not exceeding $1,000.
However, GHB possession could attract felony charges and penalties if the prosecutor can prove with proper evidence that you have a criminal record for severe offenses like sex crimes, murder, or vehicular manslaughter. In this case, a felony conviction will carry the following possible penalties:
- A jail term of sixteen (16) months, two (2) years, or three (3) years.
- A fine not exceeding $10,000.
Possession of GHB for Sale
According to HS 11351 and HS 11378, it is illegal to have a controlled drug substance, including GHB, in your possession with the criminal intent or motive to sell it. For the sake of these statutes, having a drug substance in your "possession" means you either had it physically in your pockets, bags, or vehicle, or it was in a place or room that you had control over.
To secure a conviction against you under either of these statutes, the prosecutor must prove the following elements of the crime:
- You illegally had GHB in your possession and were aware of its presence.
- You were aware of the drug's nature as an unlawful or controlled drug substance.
- The quantity you had in your possession was enough to sell.
- You had the criminal intent or motive to sell the substance.
Since there is no way to know whether you had the criminal motive to sell the drug, the prosecutor will rely on the following circumstantial evidence to prove this critical element of the crime:
- The amount of drug you had in your possession was more than you would need for medical or recreational use.
- You had ready cash to make it easier to sell or distribute the substance.
- You had a dangerous weapon, like a gun or any other dangerous weapon for self-defense, when doing your sales.
- You were at a location where transactions involving illegal drugs are rampant.
If the prosecution team cannot prove these facts, your attorney could convince the judge to reduce your charges to a lighter offense with less severe penalties. However, when the prosecutor proves the above facts beyond a reasonable doubt, you should expect felony penalties upon conviction. When charged under HS 11351, GHB possession for sale will attract the following penalties:
- Two (2), three (3), or four (4) years of jail time.
- Up to $20,000 maximum fine.
However, when the prosecutor files your charges under HS 11378, your sentence upon conviction will be lighter, including:
- A fine not exceeding $10,000.
- A jail term of sixteen (16) months, two (2) years, or three (3) years.
Sales and Transportation of GHB
HS 11352 and HS 11379 make it a crime to traffic controlled drug substances, including GHB. To obtain a conviction against you for trafficking GHB, the prosecutor must prove that you did either of the following:
- Sold GHB.
- Transported GHB.
- Furnished GHB.
- Imported GHB.
- Administered GHB.
- Gave GHB away.
Once the prosecutor proves that you did or offered to engage in either of the above illegal acts, he/she must further prove that you were aware of the drug's presence and that it was in a usable amount.
In many cases, the prosecution team relies on evidence obtained by police officers through undercover and sting operations to build a case against you for the illegal sale and transportation of GHB. Whether the prosecutor files your drug trafficking case under HS 11379 or HS 11352 will depend on the facts and circumstances of your unique case.
If you are guilty of illegal sales or transportation of GHB under HS 11352, you will receive the following felony penalties:
- Three (3), four (4), or five (5) years behind bars.
- A fine not exceeding $20,000.
However, when the prosecutor files your case under HS 11379, your penalties upon conviction at trial will include the following:
- A fine not exceeding $10,000.
- Two (2), three (3), or four (4) years of detention in the state prison.
It is worth noting that your jail sentence could increase to up to nine (9) years if the prosecutor can prove that you transported or imported GHB across two or more county borders with the motive or intent to sell or distribute it. Also, note that the judge will likely impose the harshest sentence available for this offense if the prosecutor can prove that you were aware of or should have known the following:
- The recipient of the drug had a conviction for a violent felony on his/her criminal record.
- The recipient of the drug was pregnant.
- The recipient of the drug was under medical treatment for a drug use problem or a mental disorder.
Possession of GHB While Armed
According to HS 11370.1, it is a crime to have controlled drug substances in your possession while armed with an operable and loaded firearm. Although not strictly limited to the possession of GHB only, an HS 11370.1 violation is a severe offense in the eyes of the law. However, like any other offense, a conviction is not automatic after an arrest.
Here are elements the prosecutor must prove during your case trial to secure a conviction against you under this statute:
- You had GHB in your possession.
- You were of the substance's presence.
- You were aware the substance was a controlled drug substance.
- You had an operable and loaded firearm in your possession.
A conviction for an HS 11370.1 violation will attract a jail term of two (2), three (3), or four (4) years and a fine not exceeding $10,000 because it is a felony.
Being Under the influence of GHB
The prosecutor can charge you under HS 11550 if you are under the influence of GHB without a medical prescription. Even if you have a valid medical prescription, the prosecutor can still charge you under this statute if you use the drug beyond the required scope of this prescription. A conviction for an HS 11550 violation requires the prosecutor to prove the following facts at trial:
- You willfully ingested or used GHB, meaning no one coerced you to use the substance.
- You were under the influence of GHB, meaning your brain functions and nervous system were affected by the substance.
Since it is a misdemeanor offense, a conviction under this statute will attract a jail sentence of up to one (1) year and a fine not exceeding $500.
Driving Under the Influence of GHB
Another common crime that involves GHB is driving under the influence of drugs, also abbreviated as DUID. If you are under arrest for driving or operating a vehicle under the influence of GHB, you could face misdemeanor penalties upon conviction, regardless of whether you had a prescription for the substance or not.
However, the prosecutor presiding over your case must prove the following facts beyond a reasonable doubt:
- You were driving.
- You had GHB in your blood.
- The substance impaired your ability to drive a vehicle like a cautious driver would under the same circumstances.
During your case trial, the prosecutor can summon a drug recognition expert (DRE) to testify that you had GHB in your system. For a first-time offense, a conviction for DUID under Vehicle Code (VC) 23152(f) will not attract jail time. Instead, the court could sentence you to an informal probation and require you to pay fines.
However, when you are a repeat offender, your subsequent conviction for a VC 23152(f) violation will attract a jail term of up to six (6) months. On the other hand, if it is your fourth-time DUID offense, the prosecutor will file your case as a felony, carrying a jail term of three (3) years and a fine not exceeding $5,000 upon conviction.
In addition to these hefty fines, a VC 23152(f) violation conviction can make you lose your driving privileges because the Department of Motor Vehicles (DMV) will suspend your driver's license.
Eligibility for a Drug Diversion When Charged With a Crime That Involves GHB
If you are under arrest or charged with a low-level drug possession offense, like possession of GHB under HS 11350, you could qualify for a drug diversion program under:
- Penal Code (PC) 1000.
- Proposition (Prop) 36.
- Drug court.
Generally speaking, a drug diversion is an alternative sentencing option that allows you to undergo drug counseling and therapy sessions instead of a jail term when charged with a low-level or non-severe drug possession offense.
Once you complete the court-approved counseling or rehabilitation program successfully without breaching the necessary terms, the court could dismiss your charges, meaning they will not appear on your record. However, to qualify for a drug diversion under PC 1000 or Prop 36, you have to plead guilty to HS 11350 charges.
It is worth noting that you will not qualify for a drug diversion program if any of the following facts are true:
- You have a prior conviction record for HS 11351 violation.
- You have a previous history of parole or probation violation.
- Five years are not over since your last enrollment in a drug diversion program.
- You have prior felony convictions on your record within the past five years.
You will depend on your defense attorney to convince the court that you are an excellent candidate for drug diversion if you are under arrest or charged with a crime involving GHB.
Defenses That Your Attorney Could Use to Challenge Any of the Above GHB-related Drug Charges
With proper legal defenses, you could avoid or reduce the possible consequences of a conviction for any of the above GHB-related drug offenses. Below are common and viable defenses your defense attorney will apply at trial to challenge your GHB-related drug charge:
- You have a valid medical prescription to use the drug.
- You were unaware the drug substance in question was in your possession.
- You did not have the criminal intent or motive to sell the substance.
- You were not under the influence.
- You are a victim of entrapment by the police.
- You are a victim of unlawful or warrantless searches by the police.
- You are a victim of mistaken identity.
- The prosecutor's evidence against you is insufficient.
- Your urine or blood test results were inaccurate or tainted.
The specific defenses your defense attorney will use to challenge your GHB-related drug charge will depend on the facts of your case. However, with proper arguments and evidence, some of these defenses could work in your favor to secure a dismissal of your charges or a lighter offense.
Find a Van Nuys Defense Attorney Near Me
You cannot risk dealing with the prosecutor and judge alone if you are under arrest or charged with a crime that involves GHB. At Leah Legal, we can intervene and help you challenge your GHB-related drug charges for the best attainable outcome.
We invite you to call us at 818-484-1100 to schedule your initial obligation-free appointment with our skilled and seasoned defense attorneys, wherever you are in Van Nuys.