California GHB Laws – Possession, Sales and Use

California law makes it a crime to possess, be under the influence of, sell, transport, traffic, manufacture or drive under the influence of GHB. Possessing a small amount of the drug for personal use is treated as a misdemeanor and offenders are usually eligible to complete drug diversion and thereby get the charge dismissed.

GHB is a colorless, odorless drug that is often abused either alone or with alcohol due to its euphoric and sedative effects. Other nicknames for GHB include the “date rape” drug, “liquid ecstasy”, “liquid X”, “liquid E”, “G” and “Georgia Home Boy.”

People who suffer from narcolepsy may legally obtain GHB in the prescription medication XYREM®. XYREM contains sodium oxybate, a form of GHB. Because of its high potential for abuse, the use and distribution of XYREM is tightly regulated. Improper use of XYREM or homemade GHB can cause serious medical problems including seizures, trouble breathing, changes in alertness, coma, and death.

Gamma-hydroxybutyric acid (GHB) is classified as a schedule I depressant under the United States “Controlled Substances Act. The GHB-containing pharmaceutical product, XYREM, is controlled as a schedule III drug.¹

A “Schedule I” drug is a narcotic that

1. has a high potential for abuse, and
2. has no currently accepted medical use in the United States.²

By contrast, a “Schedule III” drug is a narcotic that

1. has less abuse potential than the drugs classified under Schedules I and II (Schedule II drugs are considered as dangerous as Schedule I but have a very specific, very restricted medical use),
2. has a currently accepted medical use in treatment in the U.S., and
3. may lead to moderate or low physical dependence or high psychological dependence if abused.³

Because of the dual classification of GHB, there are many laws that regulate its use, possession and sales.  This article — written by our California criminal defense lawyers⁴  — serves as an overview of these laws. Specifically, we address the following:

• 1. What is GHB?
  • 1.1. Medical uses
  • 1.2. Use as a “club drug”
• 2. California Laws Regulating the Possession, Use and Sales of GHB
  • 2.1. Health and Safety Code Sections 11350 and 11377 HS — California’s “personal possession of GHB” laws
  • 2.2. Health and Safety Code Sections 11351 and 11378 HS — California’s “possession or purchase
    of GHB for sale” laws
  • 2.3. Health and Safety Code Sections 11352 and 11379 HS — California’s laws against” transporting
    or selling GHB”
  • 2.4. Health and Safety Code 11550 HS — California’s law against being under the influence of GHB
  • 2.5. Driving under the influence of GHB
• 3. Legal Defenses to California
  GHB-Related Charges

1. What is GHB?

GHB is a central nervous system depressant.  A “central nervous system depressant” is a drug that slows down brain activity.  Because of this, GHB can be deadly when combined with alcohol or other depressants.

GHB comes in a clear liquid, white powder, tablets and capsules.  It is virtually colorless and odorless and quickly dissolves in liquid.⁵ Because of the fact that GHB can be easily “slipped” into someone’s drink without detection.as well as its ability to sedate and incapacitate an unsuspecting victim.it is a commonly used “date rape” drug.

1.1. GHB’s medical uses

GHB was first manufactured in 1960 as an anesthetic because of its ability to induce sleep and create a reversible coma.  However, the onset of coma was often associated with seizure-like symptoms.  Then, in the late 1980s, GHB was marketed and sold as

1. a “growth hormone stimulator” to help bodybuilders promote muscle mass and maintain weight,
2. a treatment for clinical depression,
3. a treatment for alcoholism, and
4. as an over-the-counter sedative agent (used primarily as a sleep aid).⁶

However, by 1991, the Food and Drug Administration (“FDA”) banned GHB based on several reports of adverse reactions, which included a number of lethal overdoses.  On February 18, 2000, then-President Clinton signed a bill that declared GHB a Schedule I drug.⁷

But then, in 2001, GHB was also added as a Schedule III drug.⁸ This was as a result of a new drug called XYREM. XYREM–the primary active ingredient of which is a form of GHB–is currently approved for the treatment of narcolepsy in patients who suffer from

1. cataplexy (that is, a sudden loss of muscle tone), and
2. excessive daytime sleepiness (EDS).⁹

Legal GHB is only available when prescribed in XYREM, and its use is strictly regulated.

1.2. Use as a “club drug”

Most of GHB’s notoriety stems from its use as a club drug.  A “club drug” is a category of recreational drugs that are used to enhance the experience of being in a club/party/bar/concert with loud music and flashing lights. Users take advantage of the drug’s stimulating and psychedelic properties.

In addition to GHB, some popular club drugs include (but are not limited to):

• ecstasy (more commonly referred to as “X”),
• ketamine, and
• methamphetamines.

The effects of GHB are typically felt within anywhere from ten minutes to one hour and usually last between 2-3 hours.  Some of these effects include:

• euphoria (that is, a feeling of great happiness or well-being),
• dizziness or sleepiness, and even
• muscle spasms, vomiting and a loss of consciousness.¹⁰

2. California Laws Regulating the Possession, Use and Sales of GHB

Because the legal uses for GHB are so restricted, California strictly regulates the narcotic’s use, possession and sales.  As a result, engaging in any of these activities subjects you to prosecution.

The following is a brief synopsis of some of the most common California drug crimes that apply to GHB.

2.1. Health and Safety Code Sections 11350 and 11377 HS — California’s “personal possession of a controlled substance” laws

You violate Health and Safety Code 11350 HS California’s “personal possession of a controlled substance” law and Health & Safety Code 11377 HS California’s law against personally possessing a controlled substance when you possess GHB without a valid prescription.¹¹ You hold a valid prescription when you

1. have a prescription for XYREM from a licensed doctor, and
2. use the narcotic only in strict compliance with that prescription.

If you do not have a valid prescription – and are caught possessing GHB – you face misdemeanor charges and up to one (1) year in county jail.

(The exception is if you have a prior conviction either for certain serious violent felonies, such as murder, sexually violent offenses, sex crimes against a child under 14, and gross vehicular manslaughter while intoxicated, or for a crime that requires you to register as a sex offender. In that case, GHB possession will be charged as a felony carrying up to three (3) years in prison.)¹²

Typically, a drug only falls under one of the above laws. However, because of GHB’s unique nature in being classified under two different Schedules, it is included in both laws. Of the two, HS 11377 is considered less severe, as it involves drugs thought to be less problematic than those under HS 11350. The prosecutor will ultimately choose which code to charge you with depending on the circumstances of the offense.

The difference in punishment between these offenses lies in the fines. Consequences of GHB possession under HS 11350 include a maximum fine of $20,000. Penalties for HS 11377 GHB possession include a maximum $1,000 fine.¹³

Both of these offenses apply to other drugs as well. Controlled substances addressed under HS 11350 also include

• cocaine (and cocaine base),
• heroin,
• peyote,
• certain hallucinogenic substances, and even certain prescription drugs such as
• codeine, and
• hydrocodone (“Vicodin”).¹⁴

And some of the other narcotics covered by Health and Safety Code 11377 include

• methamphetamines,
• specific anabolic steroids, and
• ketamine (“special K” or “K”).¹⁵

The good news is that a California conviction for personal possession of GHB — rather than a conviction for possession of GHB for sale (discussed below) — may entitle you to participate in drug diversion.

California’s “drug diversion”- a program that allows eligible defendants to serve their time in drug treatment in lieu of jail or prison – is available through

• Proposition 36,
• Penal Code 1000 PC, and
• California drug courts.

If you successfully complete drug diversion, your GHB charge(s) will be dismissed at the end of the program.

2.2. Health and Safety Code Sections 11351 and 11378 HS California’s laws against possession or purchase of GHB for sale

Both Health and Safety Code 11351 HS California’s “possession or purchase of a controlled substance for sale” law and Health and Safety Code 11378 HS prohibit possessing or purchasing GHB with the intent to sell it.¹⁶

These offenses are considered more serious than those listed above.  This is because these offenses not only involve possessing GHB but also involve possessing or purchasing the narcotic with the intent to sell it to other people/organizations.

If you possess or purchase GHB – and the prosecutor can prove that you did so with the intent to resell the drug and not to consume it personally – you face a felony.

Health and Safety Code 11351 HS subjects you to two, three or four years in the state prison and a maximum $20,000 fine.¹⁷ HS 11378 subjects you to 16 months, or two or three years in prison and a $10,000 fine.¹⁸ And again, it is the prosecutor who chooses which charge to file.

A California conviction for possessing or purchasing GHB with the intent to sell it does not qualify for drug diversion.

But as Rancho Cucamonga criminal defense attorney John Murray¹⁹ explains, “This is one of the reasons why having a savvy California drug crimes lawyer is so critical.  If your attorney can convince the prosecutor/judge/jury that you only possessed the GHB for personal use rather than for sale, you not only face lesser penalties but have the chance to participate in drug diversion as well.”

2.3. Health & Safety Code Sections 11352 and 11379 HS — California’s laws against transporting or selling GHB

You violate Health and Safety Code 11352 HS California’s “transporting or selling a controlled substance” law and/or Health and Safety Code 11379 HS California’s “sale or transportation of methamphetamines” law when you sell GHB. or transport it for sale  The difference between this law and California’s law against possessing GHB with the intent to sell it is that this law deals with actual California GHB sales, not just intent.  Transporting for sale, giving away and administrating GHB are a few of the other offenses prohibited under these laws.²⁰

If you are convicted under HS 11352 for selling or transporting (with intent to sell) GHB – or any of the other activities banned under this law- you face a felony punishable by up to three, four or five years in prison and a $20,000 fine.²¹ A felony conviction under HS 11377 subjects you to two, three, or four years in prison and a $10,000 fine.²²

However, if you are convicted of transporting GHB across more than two counties with intent to sell it under either law, your prison sentence increases to three, six, or nine years.²³

And the judge will most likely impose the harshest available term if you knew — or reasonably should have known — that the recipient of the GHB

1. was pregnant,
2. had previously been convicted of a violent felony, or
3. was being treated for a mental health disorder or for a drug problem.²⁴

∗Finally, a conviction for any of these California GHB-related offenses subjects you to deportation if you are a legal immigrant or legal alien.²⁵ For more information about how California drug offenses affect aliens, please review our article on California Crimes that Lead to Deportation.

2.4. Health and Safety Code 11550 HS — California’s “being under the influence of GHB” law

You violate Health and Safety Code 11550 HS California’s “being under the influence of a controlled substance” law when you are under the influence of GHB.²⁶ You are “under the influence” of GHB if “your physical and/or mental abilities are impaired in “any detectable manner”.²⁷

A conviction for this misdemeanor offense subjects you to up to one year in county jail.  As with a personal possession charge, being under the influence of GHB may allow you to participate in a drug diversion program in lieu of incarceration.²⁸

2.5. Driving under the influence of GHB

You violate Vehicle Code 23152f VC California’s driving under the influence of drugs law by driving under the influence of GHB.²⁹ Driving under the influence is different than simply being under the influence.  You drive under the influence of GHB when the GHB has “so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.”³⁰

Most convictions for driving under the influence of GHB are misdemeanors, subjecting you to fines and potential jail time.  Drug diversion is not applicable to a California conviction for driving under the influence.

3. Legal Defenses to California GHB-Related Charges

If you possess or use GHB because you suffer from narcolepsy – and are using the drug in compliance with a valid prescription – that is probably your best legal defense to a California GHB-related crime.

If, however, that is not the case, do not despair.  There are a variety of defenses to California GHB-related charges that your California drug crimes defense lawyer can present on your behalf.  Determining which ones will be most effective will, of course, depend on the exact charges you face.  However, there are several that are common to many California drug offenses.

These include (but are not limited to):

• • you possessed GHB for personal use, not for sale (which is a less serious offense and may allow you to participate in California drug diversion),
  • the GHB didn’t belong to you (the police mistakenly attributed someone else’s drugs for yours),
  • you only possessed, used or sold GHB because an officer lured or coerced you into doing so (known as the legal defense of entrapment),
  • the GHB was discovered and seized during an illegal search and seizure that violated California’s search and seizure laws, or
  • the police engaged in some other type of police misconduct while conducting their investigation, perhaps because

a) they “planted” or “fabricated” evidence,

b) used excessive force to obtain or discover the alleged GHB, or

c) they lied about the circumstances that led to your stop and arrest.

Call us for help.

If you or a loved one is charged with possession of GHB and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

In Colorado? See our article on Colorado GHB laws.

In Nevada? See our article on Nevada GHB laws.

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