Possessing and/or selling ketamine or “special K” – a popular “club drug” – is illegal without a prescription. Engaging in either of these activities subjects you to a variety of penalties. The good news is that we can help.
We have decades of experience defending clients against California drug charges. Our criminal defense attorneys are former police investigators and prosecutors who have the inside scoop on how these crimes are investigated, prosecuted and — more importantly — defended.
This article serves as a basic summary of the laws that apply to California ketamine-related offenses. Our California ketamine (“special K”) attorneys1 explain these laws by addressing the following:
- 1. What is Ketamine?
- 2. California Laws Regulating the Possession and Sales of Ketamine
- 3. Legal Defenses to California Ketamine-Related Charges
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. What is Ketamine?
Ketamine — also commonly referred to as “Special K”, “Vitamin K” or “K” — is what’s known as a controlled substance. A “controlled substance” is a narcotic whose use, possession and manufacture are all regulated by the government under the United States Controlled Substances Act.
The Controlled Substances Act classifies ketamine as a Schedule III drug,2 which means that ketamine is a narcotic that
- has less abuse potential than the drugs classified under Schedules I and II (Schedule I and II drugs are considered the most dangerous with little or no legitimate medical value),
- has a currently accepted medical use in treatment in the U.S., and
- may lead to moderate or low physical dependence or high psychological dependence if abused.3
1.1. The history of ketamine (“special K”)
Ketamine belongs to a group of narcotics known as dissociative anesthetics. A “dissociative anesthetic” is a group of drugs that separate perception from sensation — that is, they reduce anxiety and produce a “trance-like” state.
First developed in 1962, ketamine (or “special K”) was initially marketed as a fast-acting general anesthetic that was a safer alternative than its counterpart, phencyclidine (“PCP”). By 1970, the U.S. federal government approved ketamine for human use. It soon became a popular “battlefield anesthetic” and was given to American soldiers during the Vietnam War.
But in the 1970s and 1980s, ketamine abuse began to increase across the country. This abuse became so widespread that the U.S. Drug Enforcement Administration (“DEA”) classified it as a Schedule III controlled substance in 1999.4
1.2. Medical uses of ketamine
Even though ketamine serves a legitimate medical purpose as an anesthetic, its use is limited. This is because ketamine has many undesirable side effects including the potential to cause “out-of-body experiences” when a patient is “emerging” or “coming out of” general anesthesia.5
As a result, ketamine is primarily used as a veterinary (that is, animal) anesthetic. It is also sometimes used as an anesthetic for children undergoing surgery because children appear to suffer from less serious side effects than adults.6
The types of side effects that limit ketamine’s use as a medical drug are precisely what make it popular as a “club drug”.
1.3. Use as a “club drug”
“Club drugs” are recreational drugs that are typically used by those on the “party or club circuit” to enhance their visual and physical experiences at clubs, parties, concerts, etc. Those who routinely use these types of drugs take advantage of the narcotic’s stimulating and psychedelic properties.
Specifically, “special K” users report that they feel “floaty”, experiencing hallucinations that are slightly outside their body. In higher doses, more of a “trippy” effect is felt, and the user feels farther away from his/her body. These effects generally only last from between 45 to 90 minutes, but can impair the user’s senses, judgment and coordination for up to 24 hours.7
Ketamine is typically sold as a liquid, although it is frequently cooked into a powder for snorting. It is also available in capsules and tablets, usually when combined with other drugs, such as MDMA, more commonly referred to as ecstasy, “X”, “XTC” or “E”.8
And, because ketamine comes in both a liquid and powder form — and can, therefore, be slipped easily into a person’s drink without being detected — it is sometimes used as a “date rape” drug.
Adverse reactions include (but are not limited to):
- high blood pressure, and
- potentially fatal respiratory problems.9
2. California Laws Regulating the Possession and Sales of Ketamine
Because ketamine (“special K”) can be used legally and illegally, there are a number of laws that strictly regulate its availability. The following are some of the most common.
2.1. Health and Safety Code 11377 HS — California’s “personal possession of ketamine” law
You violate Health & Safety Code 11377 HS California’s law against possessing a controlled substance by possessing ketamine in one of two ways:
- you possess ketamine without a valid prescription, or
- you have a prescription for ketamine, but you possess more than what is authorized by the prescription (or possess someone else’s legitimately prescribed ketamine).
Illegally possessing this narcotic is a misdemeanor, subjecting you to a six-month county jail sentence and a maximum $1,000 fine.10
However, because this offense assumes that you possess ketamine for personal use, California offers you an opportunity to participate in a drug treatment program. If you are eligible, a California conviction for personal possession of ketamine allows you to participate in “drug diversion”, a program authorized under
If you successfully complete your diversion program, your California charges for personally possessing ketamine will be dismissed.
California Health and Safety Code 11377 HS.is not only applicable to ketamine but to a number of other controlled substances as well.
Some of these include:
- gamma-hydroxybutyric acid (commonly known as “GHB”), and
- specific anabolic steroids.
2.2. Health and Safety Code 11379.2 HS — California’s “possession for sale or sale of ketamine/special K” law
Health and Safety Code 11379.2 HS California’s “possession for sale or sale of ketamine” law is considered more serious than HS 11377 above. This is because this offense involves more than just personal use. It involves
- possessing enough ketamine that there is evidence you intend to sell the drug to other people/groups, and/or
- actually selling ketamine.11
A conviction for violating California’s “possession for sale or sale of special K” law, HS 11379.2, is what’s known as a wobbler. A “wobbler” is a crime that the prosecution may choose to file as either a misdemeanor or a felony, depending on
- the facts of your case, and
- your criminal history.
If you are convicted of HS 11379.2 as a misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine. If you are convicted of HS 11379.2 as a felony, you face 16 months, or two or three years in the California state prison and a maximum $10,000 fine.12
California drug diversion is not available in connection with Health & Safety Code 11379.2 sale/possession for sale of special K.
2.3. Driving under the influence of ketamine
If you drive under the influence of ketamine, you violate Vehicle Code 23152(f) California’s driving under the influence of drugs (“DUID”) law.13 This is the case even if the only reason you were under the influence is that you legally received ketamine as an anesthesia. This is because driving under the influence of any drug — whether prescribed or not — is a crime.
You drive “under the influence” of ketamine if the ketamine 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.”14
Most convictions for driving under the influence of drugs are misdemeanors, subjecting you to fines and possible jail time. Drug diversion is not offered in connection with a DUID conviction.
It is important to understand that any of these California ketamine-related convictions could lead to your deportation or removal if you are a legal immigrant or legal alien.15 For more information about how California drug offenses affect aliens, please review our article on California Crimes that Lead to Deportation.
3. Legal Defenses to California Ketamine-Related Charges
Because there are a variety of charges involving California ketamine-related offenses, there are also a number of legal defenses that are available to refute these charges. Which ones your California drug crimes defense lawyer will present on your behalf will obviously depend on the exact circumstances of your case.
The following are some of the most common defenses that relate to California drug crimes.
3.1. You held a valid prescription for the ketamine
While this is definitely a valid defense to a “possession of a controlled substance” charge, its use with a California ketamine-related offense is quite limited. This is because ketamine’s legitimate medical use is as an anesthesia. As a result, it would most likely be administered in a hospital setting (either human or veterinary) and wouldn’t typically be a drug that you would take home to administer to yourself or an animal.
If, however, ketamine was prescribed — and you only possessed it in strict compliance with that prescription — you would not be guilty of violating Health and Safety Code 11377 HS California’s law against possession of ketamine.
3.2. You didn’t intend to sell ketamine
Let’s say that you did, in fact, illegally possess “special K” and that the facts proving such were overwhelming. In this case, your California criminal defense lawyer would probably want to argue that you only possessed the ketamine for your own personal use and that you didn’t intend to sell it.
And while it may seem odd to admit to a crime, this is often the best approach. As Palm Springs criminal defense attorney John Murray16 explains, “If you can plead guilty to a personal possession charge instead of a possession for sales or sales charge, you (1) will benefit from a less serious charge and less severe sentence, or (2) may be entitled to participate in drug diversion.a possibility that will ultimately result in a dismissed charge.”
3.3. The “special K” was discovered during an illegal search and seizure
Similarly, assume that you are guilty of a California ketamine-related offense. If the only reason that the officers discovered or seized the drug was that they engaged in an illegal search and/or seizure in violation of California’s search and seizure laws, you may be entitled to an acquittal of your charge(s).
This is because a potential illegal search or seizure will likely prompt your attorney to file a Penal Code 1538.5 PC motion to suppress evidence. If this motion is granted, the prosecutor will likely dismiss or — at the very least — significantly reduce your charge(s).
3.4. Police misconduct
Along these same lines, if the only reason that you’re facing California ketamine-related charges is because the cops engaged in police misconduct, you should be absolved of your wrongdoing. If, for example, the police
- “planted” or fabricated evidence in an effort to arrest and/or convict you,
- used excessive force to discover or seize the ketamine,
- lured or coerced you into possessing or selling the ketamine (a legal defense known as entrapment), or
- in any other way acted unethically and illegally,
your charges should be dismissed.
3.5. You were not under the influence of ketamine when you drove
If you have been charged with driving under the influence of special K, there are a number of legal defenses to fight your DUI charge.
If, for example, you can prove that your “alleged” impairment was due to
- physical disability, or
- any number of other nondrug-related innocent symptoms,
then you are not guilty of this offense.
Call us for help . . .
To learn about Nevada drug crimes laws, go to our informational article on Nevada law re possession or sale of ketamine.
- Our California drug crimes defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Health and Safety Code 11056 HS — Schedule III; substances included. (“(a) The controlled substances listed in this section are included in Schedule III.(g) Ketamine. Any material, compound, mixture, or preparation containing ketamine.”)
- 21 U.S.C. Section 812 — The United States Controlled Substances Act. (“(a) Establishment. There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and V. Such schedules shall initially consist of the substances listed in this section. The schedules established by this section shall be updated and republished on a semiannual basis during the two-year period beginning one year after October 27, 1970, and shall be updated and republished on an annual basis thereafter. (b) Placement on schedules; findings required Except where control is required by United States obligations under an international treaty, convention, or protocol, in effect on October 27, 1970, and except in the case of an immediate precursor, a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for each of the schedules are as follows: . . . (3) Schedule III – [this is where California ketamine-related offenses fall] (A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II. (B) The drug or other substance has a currently accepted medical use in treatment in the United States.(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.”).
- Center for Substance Abuse Research – Ketamine. See also Medic8.com – Ketamine.
- See Medic8.com, above.
- Do It Now Foundation – Ketamine Fast Facts.
- Dancesafe.org – Ketamine. See also Do It Now Foundation – Ketamine Fast Facts, endnote 6, above.
- California Health and Safety Code 11377 HS – Possession of a controlled substance. (“(a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year or in the state prison. (b) . . . (2) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (g) of Section 11056 is guilty of a misdemeanor [this is where California ketamine-related offenses fall].”)See also California Penal Code 19 PC — Punishment for misdemeanor; punishment not otherwise prescribed. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)
- California Health and Safety Code 11379.2 HS — Possession for sale or sale of ketamine; punishment. (“Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale or sells any controlled substance specified in subdivision (g) of Section 11056 [a California ketamine-related offense] shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison.”)
- See same. See also California Penal Code 18 PC — Punishment for felony not otherwise prescribed [including felony ketamine possession for sale or sale]; alternate sentence to county jail. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.”)See also California Penal Code 672 PC — Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies [including felony ketamine possession for sale or sale], in addition to the imprisonment prescribed.”)
- California Vehicle Code 23152(f) VC — Driving under the influence of drugs. (“(f) It is unlawful for any person who is under the influence of any drug [including ketamine] to drive a vehicle.”)
- People v. Enriquez (1996) 42 Cal.App.4th 661, 665. (“The term “under the influence” differs for the purposes of section 23152, subdivision (a) and Health and Safety Code, section 11550. “To be ‘under the influence’ within the meaning of the Vehicle Code, the … drug(s) [in this case, ketamine] must have 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. [Citations.] In contrast, ‘being under the influence’ within the meaning of Health and Safety Code section 11550 merely requires that the person be under the influence in any detectable manner. The symptoms of being under the influence within the meaning of that statute are not confined to those commensurate with misbehavior, nor to those which demonstrate impairment of physical or mental ability.”)
- 8 U.S. Code Section 1227 — Deportable aliens. (“(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens. (2) Criminal offenses. (B) Controlled substances. (i) Conviction. Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. And because ketamine is a controlled substance, it is a California crime that could lead to deportation.
- Palm Springs criminal defense attorney John Murray represents clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.