California makes it a misdemeanor to possess or use GHB (gamma-Hydroxybutyric acid) or XYREM (pharmaceutical GHB) without a doctor’s prescription, though you can usually get the charge dismissed with no jail if you complete a diversion program. Meanwhile, selling or planning to sell GHB is always felony, and jail may be unavoidable.
|California GHB crime||Maximum jail/prison term (generally) |
|Simple possession – 11350 & 11377 HS|| |
|Possession for sale – 11351 HS & 11378 HS|| |
|Selling/transporting (“trafficking”) – 11352 & 11379 HS|| |
|Being under the influence – 11550 HS|| |
|Driving under the influence – 23152f VC|| |
In this article, our California criminal defense attorneys summarize the state GHB laws including potential penalties and legal defenses:
- 1. Possessing GHB (11350 & 11377 HS)
- 2. Possessing GHB for sale (11351 & 11378 HS)
- 3. Transporting or selling GHB (11352 & 11379 HS)
- 4. Being under the influence of GHB (11550 HS)
- 5. Driving under the influence of GHB (23152f VC)
- 6. How to fight criminal charges
- Additional resources
1. Possessing GHB (11350 & 11377 HS)
California Health and Safety Code section 11350 and section 11377 prohibit “simple possession,” which is possessing drugs for personal. To prove that you are in possession of GHB, a prosecutor would have to show that either:
- you are carrying GHB on your person – called actual possession;
- you are storing the GHB in your home, car, or other property you control – called constructive possession; and/or
- you are sharing control of the GHB with another person(s) – called joint possession.
Certainly, you may lawfully possess GHB if you have a current and valid prescription for XYREM and you have no more medication than the prescription authorizes.
Simple GHB possession is typically a California misdemeanor carrying up to 1 year in jail and/or $1,000 in fines. Though both jail and a conviction are usually avoidable if you do a diversion program such as:
Simple GHB possession becomes a felony if you have already been convicted of certain serious offenses, such as murder, gross vehicular manslaughter while intoxicated, or any sex crime requiring registration as a sex offender. Felony penalties for GHB possession are 16 months, two years, or three years in jail and up to $10,000.1
See our related article, possessing a controlled substance while armed (HS 11370.1).
2. Possessing GHB for sale (11351 & 11378 HS)
California Health and Safety Code section 11351 and section 11378 prohibit possessing a controlled substance such as GHB with the intent to sell it.2 Since there is no way to see “intent to sell,” prosecutors typically rely on the following circumstantial evidence to try to convict you:
- the amount of drugs in your possession was more than a recreational user would have;
- you had a gun for self-defense during drug deals;
- you had cash as payment from selling drugs; and/or
- you were seen in places where people typically transact drug deals.
The prosecutor decides whether to charge you under HS 11351 or HS 11378. Possessing GHB for sale in violation of HS 11351 is a California felony, carrying:
- 2, 3, or 4 years in jail and
- up to $20,000 in fines.3
Meanwhile, possessing GHB for sale in violation of HS 11378 is a California felony, carrying:
- 16 months, 2 years, or 3 years in jail and
- up to $10,000 in fines.4
3. Transporting or selling GHB (11352 & 11379 HS)
California Health and Safety Code section 11352 and section 11379 prohibit trafficking controlled substances. For you to be convicted of trafficking GHB, the D.A. needs to show that you either:
- transported GHB,
- sold GHB,
- imported GHB into California,
- furnished GHB,
- administered GHB,
- gave away GHB, or
- offered to do any of the above.
The prosecutor decides whether to prosecute you under HS 11352 or 11379. Selling or transporting GHB in violation of HS 11352 is a California felony carrying:
- 3, 4, or 5 years in prison, and
- up to $20,000 in fines.
Meanwhile, selling or transporting GHB in violation of HS 11379 is a California felony carrying:
- 2, 3, or 4 years in prison, and
- up to $10,000 in fines.
Note that penalties increase to three, six, or nine years in prison if you transported the GHB across more than two county lines while planning to sell the GHB at the destination. Also note that judges will most likely impose the harshest available term if you knew – or reasonably should have known – that the recipient of the GHB:
- was pregnant,
- had previously been convicted of a violent felony, or
- was being treated for a mental health disorder or for a drug problem.5
Finally, note that all GHB law-related crimes subject non-citizens to possible deportation once they finish serving their sentence. Learn more about California crimes that lead to deportation.6
4. Being under the influence of GHB (11550 HS)
California Health and Safety Code 11550 HS criminalizes being under the influence of controlled substances, such as GHB.7 For courts to convict you for being under the influence of GHB, the prosecutor has to demonstrate that:
- your physical or mental abilities are impaired “in any detectable manner;” and
- GHB caused the impairment; and
- you are not using the GHB in accordance with a current and valid doctor’s prescription.8
In California, being under the influence of GHB is a misdemeanor carrying up to one year in jail. However, you can usually get the case dismissed and avoid jail by completing diversion.9
5. Driving under the influence of GHB (23152f VC)
California Vehicle Code 23152(f) VC makes it a criminal offense to drive while under the influence of drugs.10 If you are arrested for DUI of GHB, the D.A. has the burden to prove that 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.”11
Like driving under the influence of alcohol (DUI), driving under the influence of drugs (DUID) is usually a misdemeanor. First-time convictions have penalties of up to six months in jail, up to $1,000 in fines, a driver’s license suspension, and DUI school.12
6. How to fight criminal charges
Here at Shouse Law Group, we have represented literally thousands of people charged with GHB crimes. In our experience, the following six defenses have proven very effective with prosecutors, judges, and juries in California:
1) Illegal police tactics uncovered the GHB
You have a Fourth Amendment protection against unreasonable searches and seizures. If the police may have found GHB by conducting an unlawful search, then we would ask the court to suppress the GHB as evidence. If we are successful, the prosecutor may have to dismiss your case for lack of proof.13
2) Police entrapped you into buying or selling GHB
Police are allowed to go undercover and trick you such as by posing as drug dealers or sellers. However, they may not coerce you into buying or selling drugs when you were not predisposed to doing so. If we can show that the police crossed the line into entrapment, your case could be dismissed.
3) No GHB was in your possession
Even if police found GHB on your person or property, the court cannot convict you of possession if you did not know the GHB was there. If we can show that someone else left the drugs there or planted the drugs on you without telling you, the D.A. can dismiss the charge.
4) You were not under the effects of GHB
Police sometimes mistake fatigue, narcolepsy, seizures, diabetic comas, or other ailments for being under the influence of drugs like GHB. If we can show through your medical records, eyewitness accounts or video footage that what was happening to you had nothing to do with narcotics, then the D.A. may dismiss the case.
5) Your doctor prescribed XYREM to you
You are permitted to possess XYREM in accordance with a current and valid prescription from your doctor. Unless the D.A. can show that you had more XYREM than the prescription allowed – or that the XYREM belonged to someone else – then your possession charges cannot stand.
6) You had no intent to sell the GHB
If the D.A. is alleging that you possessed GHB with intent to sell it, we would try to undermine their arguments by showing how their evidence is too holey or inadequate to sustain a conviction. For example if they claim you were found with large amounts of cash, we would argue that cash is how you prefer to buy most things and that it did not come from a drug deal. If successful, we can get the charge knocked down to simple possession.
For help or more information beyond California GHB laws, refer to the following:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Gamma-Hydroxybutyrate (Ghb) – Uses, Side Effects, and More – WebMD article about the drug’s properties and treatment.
- GHB – Gamma-Hydroxybutyric Acid – Drug Enforcement Administration fact-sheet on GHB.
- GHB – Alcohol and Drug Foundation overview of GHB.
- California Health and Safety Code 11350 HS. California Health and Safety Code 11377 HS. See also California Health and Safety Code 11372 HS. California Penal Code 1210.1 PC. California Penal Code 1000 PC.
- California Health and Safety Code 11351 HS.
- California Health and Safety Code 11378 HS.
- California Health and Safety Code 11352 HS. California Health and Safety Code 11379 HS. California Penal Code 1170.82 PC.
- 8 U.S. Code Section 1227.
- California Health and Safety Code 11550 HS.
- People v. Enriquez (1996) 42 Cal.App.4th 661.
- See note 7.
- California Vehicle Code 23152f VC.
- See note 8.
- See note 10.
- See, for example, People v. Dempsey (Cal.App. 2021) A158163, A162664.