Gamma Hydroxybutyrate (“GHB”) is a central nervous system depressant that is commonly referred to as a “date rape” drug. GHB may appear in a liquid form or as a solid white powder, which is commonly mixed in a beverage. Recently, GHB has increased in illegal use and abuse at parties or clubs, and is mixed in alcoholic drinks. In fact, the Food and Drug Administration (“FDA”) placed GHB in Schedule I of the Controlled Substances Act (“CSA”).

It is important to note that GHB is an odorless and colorless drug, which makes the potential for abuse even higher. Common side effects to GHB include nausea, hallucinations, amnesia, loss of consciousness, slowed heart rate, and death. Other effects of GHB on the body can include:

  • Euphoria;
  • Increased sex drive;
  • Decreased anxiety; and
  • Aggressive behavior.

Gamma Hydroxybutyrate is prescribed as Xyrem, a brand name drug that is approved for the treatment of narcolepsy by the Food and Drug Administration. As a prescription drug, Xyrem is classified as a Schedule III drug when used legally. Importantly, Xyrem is not available as an over-the-counter drug. Thus, if Xyrem is being used as a recreational drug or not in a clinical or restricted patient setting, the drug converts to a Schedule I drug. The most common GHB drug crimes include:

    • Sexual Assault: Because of the effects GHB can have on the body, it is often combined with alcohol and given to unsuspecting individuals. When this is done, the individuals often become victims of sexual assault; and
  • Possession or Distribution: As a Schedule I drug, it is illegal to illegally possess or distribute GHB.

How Is Illegal Possession of GHB Defined in California?

As mentioned above, it is illegal to possess GHB, unless it is in an approved clinical setting with a valid prescription. Once again, the brand name drug Xyrem has GHB as a main component, and is an approved medication used to treat narcolepsy.

Under California GHB laws, an individual may be arrested for various different criminal charges. For example, an individual can be charged for the illegal possession of GHB without a valid prescription, or for possession of a controlled substance. It is important to note that an individual is considered to possess an item when it is on their person, or attached to their person, such as in a backpack, purse, pocket, suitcase, etc.

Additionally, an individual may also be considered to constructively possess a drug, even if it is not on their immediate person. For example, if an individual leaves a controlled substance in a backpack, and leaves the backpack in a vehicle, then they still may be charged for the illegal possession of that controlled substance.

Is Possession of GHB The Same as Being Under the Influence of GHB?

Simple put, no, the possession of GHB is not the same as being under the influence of GHB. Although it may seem obvious, you can possess GHB without taking the drug. In fact, under California GHB possession laws, there are separate criminal charges for the illegal possession of GHB (California Health and Safety Code Section 11377) and being under the influence of GHB (California Health and Safety Code Section 11550). Being under the influence is also often prosecuted under the California Vehicle Code (specifically Vehicle Code Section 23152(f)) when a defendant operates a motor vehicle under the influence.

Typically, illegal possession of GHB is charged as a misdemeanor, which carries a penalty of up to $20,000 in criminal fines, a year in county jail, or a combination of both. However, the possession of GHB can also be charged as a felony, if the defendant has been previously charged with a sex crime, felony crime, or has previously been convicted of illegal possession. If charged as a felony, the criminal penalties are much more severe.

If convicted of a felony, you can face up to 16 months to 3 years in prison. It is important to note that it is also illegal to possess GHB with an intent to sell. Transporting, selling, or administering GHB are all illegal under California Health and Safety Code Section 11352. For example, if caught transporting GHB over two counties in California, the criminal charges include up to a 9 year prison sentence.

An individual may be charged as being under the influence of GHB if their physical or mental abilities are impaired in a detectable manner. This means that individuals are often convicted of being under the influence of GHB through field sobriety tests. Being under the influence of GHB is a misdemeanor offense, which carries a penalty of up to one year in a county jail. For first time offenders, the defendant may avoid jail time through participation in a drug diversion program.

What Does the Prosecution Have to Prove to Convict Me of GHB Possession?

In order to be convicted of possession of a controlled substance (GHB) in California, the prosecutor must prove all of the following elements:

  1. That the defendant unlawfully possessed or exercised control over GHB, i.e. they did not have a valid prescription;
  2. That the defendant was aware that the GHB was present;
  3. That the defendant knew the substance was GHB;
  4. That the substance was in fact GHB; and
  5. That there was a sufficient quantity of GHB present that could be used.

It is important to note that the prosecutor must prove all of the above elements beyond a reasonable doubt, in order to convict a defendant of illegal possession of GHB. If all of the elements are proven beyond a reasonable doubt, then the defendant will be criminally charged with the illegal possession of a controlled substance.

What Are the Possible Defenses to a GHB Possession Charge?

If you are charged with the possession of GHB, there may be legal defenses available to the criminal charges brought against you. For example, the most common legal defense is the possession of a valid prescription for the drug. However, if you do not have a valid prescription for GHB, there still may be other legal defenses available to you, including:

    • Entrapment: In some cases, your possession of GHB may be because an undercover officer or other individual coerced you into possessing the drug. In such cases, you may use the legal defense of entrapment to lessen or remove the charges being brought against you;
    • Non-Possession: As mentioned above, the criminal prosecutor must be able to prove that you were aware of the GHB and exercised control over it. Thus, if the GHB did not belong to you, and you were unaware, you cannot be charged with the illegal possession of the drug;
    • Illegal Search and Seizure: If the GHB was obtained by the police during an illegal search and seizure, the evidence may be suppressed and not used against you in the criminal charges brought against you; and/or
  • Police Misconduct: If the police engaged in police misconduct, such as planting the GHB or the excessive use of force, the charges brought against you may be dropped.

Should I Contact a Lawyer to Help Me with My GHB Possession Case?

If you have been charged with the illegal possession of GHB, then it is in your best interests to contact a skilled and knowledgeable California drug lawyer. An experienced and local California criminal lawyer will be able to review the specific facts of your case, and provide you with your best legal options in defending yourself against the criminal charges brought against you. Finally, they will also be able to represent you during plea negotiations, and in court as necessary.