GHB laws in California

Jay Leiderman
By: Jay Leiderman
January 06 2017

In 1996 “GHB” was not a “controlled substance.” California first “scheduled,”[1] some forms of GHB, or made it illegal, by placing it upon the list of prohibited substances in Health and Safety Code section 11055(e)(6), by passing urgency legislation that became effective on 2 December 1997 (See exhibits 58-59, 1997 AB6[2]). As urgency legislation, the legislation became effective when the governor signed it and it was “chaptered.”  On 1 January 2000, section 11055(e)(6) was amended to be more inclusive and GHB became listed section 11054(e)(3) and section 11056(c)(11).[3] Thereafter, all forms of GHB became controlled substances.[4]

GHB of any type was simply not a controlled substance in 1996, when the crimes charged herein occurred.  Ergo, the trial team’s failure to research the law and investigate the facts as they relate to GHB, and to request proper jury instructions, resulted in years of imprisonment.  Counsel committed a century of ineffective assistance of counsel by failing to read and know the law and apply it to the facts of this case

GHB

[1] See H&S 11007: “’Controlled Substance’  . . . means a drug . . . listed in any schedule in section . . . 11055 . . . .”

[2] http://www.leginfo.ca.gov/pub/97-98/bill/asm/ab_0001-0050/ab_6_bill_19970929_chaptered.html

 

[3] In 1997 GHB was simply listed as “Gamma-hydroxybutyrate.”  The drug is now listed in section 11054(e)(3): “Gamma hydroxybutyric acid (also known by other names; gamma hydroxy butyrate; 4-hydroxybutyrate; 4-hydroxybutanoic acid; sodium oxybate; sodium oxybutyrate), including its immediate precursors, isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, including, but not limited to, gammabutyrolactone, for which an application has not been approved under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 355);” and 11056(c)(11): “Gamma hydroxybutyric acid, and its salts, isomers and salts of isomers, contained in a drug product for which an application has been approved under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 355).”

[4] And, of course, it was a failure of the ineffective defense team to not explore this issue.  An expert, even used solely as a defense consultant, could have helped Diamond distinguish between the types of GHB and thereby could have afforded him the argument that Shawna may not have been administered the type of GHB that was illegal in 1997.  The jury was instructed that the rape of Shawna was via a controlled substance and all counsel simply failed to inquire as to whether or not the type of GHB petitioner possessed was that which was prohibited in 1997.

***

GHB has a biphasic sedation pattern which is due, in part, to the two main types of receptors to which the drug binds.  At lower concentrations, the drug binds more to one than another.  At a higher concentration, the drug binds to the other receptor.  The first causes more of an elevation in consciousness and mood.  At the higher concentration, it tends to cause sedation.  As a patient metabolizes the drug and concentrations lower, a sudden arousal is common.  Importantly, GHB does not stop autonomic reflexes, such as smooth muscle contractions.

The videotapes demonstrated several important findings in view of the GHB pharmacology, which, in my opinion, exclude GHB as the drug causing the demonstrated findings.  Specifically, the females shown as unconscious had very little, if any, nipple erection after extensive simulation.  Also, there was no apparent anal “wink,” or contraction of the anus with peri-anal stimulation.  Both of these reflexes are impossible to control for most people.  They evidenced partial airway obstruction, with sonorous respiration for long periods, without any attempt to spontaneously correct their positions.  This is indicative of a deep sedative state.  There was also no attempt to move the left arm of one of the females, even though it was flexed and in what ordinarily would be an uncomfortable position where it stayed for a long period of time.  This is another sign of deep sedation.   One female moved during the videotape, changed her position and then reassumed a seemingly unconscious state.  This is extremely atypical for someone under the influence of GHB, even in conjunction with other drugs, because as they metabolize the drug to a less sedated concentration, they often become hyper-awake and do not go back to an unconscious state.

In summary, the autonomic suppression, deep sedation with recurring sedation after partial wakening make GHB highly unlikely as the agent causing this videotaped syndrome.

 

 

16 thoughts on “GHB laws in California

  1. “In my judgment the people of no nation can lose their liberty
    so long as a Bill of Rights like ours survives and its basic
    purposes are conscientiously interpreted, enforced and
    respected so as to afford continuous protection against old,
    as well as new, devices and practices which might thwart
    those purposes. I fear to see the consequences of the
    Court’s practice of substituting its own concepts of decency
    and fundamental justice for the language of the Bill of Rights
    as its point of departure in interpreting and
    enforcing that Bill of Rights.”
    — Justice Hugo L. Black
    (1886-1971) US Supreme Court Justice
    Source: Adamson v. California, 332 U.S. 46, 89 (Dissent) (1947)

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  4. Until February 2000, laws regarding GHB and its analogs have been limited primarily to the state level. Enforcement has been slow. President Clinton signed the bill H.R. 2130 on February 18, 2000, which will make GHB, Ketamine, and GBL a Schedule 1 drug, while still allowing supervised use for narcolepsy. When and if GHB is approved for medical use by the FDA for narcolepsy, more specifically, cataplexy, it will go back to Schedule 3, but with Schedule 1 consequences for illicit use.

  5. STATES HAVING CONTROLLED GHB

    To date (September 1999),25 states have controlled gamma hydroxy butyrate (GHB) in some fashion. Some of these states, especially if in Schedule III or IV, may have an analog problem. (Analogs are chemical cousins being sold as Blue Nitro, Renewtrient, Firewater, Serenity, etc. that have the same effect as GHB and in fact are turned into GHB in the body.) Those who have only criminalized GHB, but have not “controlled” it may also have an analog problem, unless analogs were specified in the legislation. Even if federal legislation is passed, each and every state MUST control GHB in order for local and state law enforcement agencies to be able to make arrests for possession, sales and manufacturing. Federal prosecution is limited to specific circumstances and usually to large-volume cases. For help initiating legislation in your state, contact Trinka Porrata via email at Equus555@worldnet.att.net.

  6. States where GHB is Schedule I

    Georgia
    Rhode Island
    Hawaii
    Illinois
    Nevada
    Wisconsin
    Michigan
    Delaware
    Idaho
    Oklahoma
    Nebraska
    Alabama
    Arkansas

  7. Four states (Arizona, Texas, Colorado and Massachusetts) have criminalized sale and possession of GHB, but have not scheduled it, and placed it in their highest penalty groups.

  8. The street names for GHB include “G”, Gamma-OH, Fantasy, Georgia Home Boy, Grevious Bodily Harm, Liquid X, Liquid Ecstasy, Scoop, Water, and Everclear. It is probably most well known as the date rape drug because its colorless and odorless characteristics allows it to be added to drinks without detection. It is a central nervous system depressant traditionally used as an anesthetic. Its active ingredient is Gamma Hydroxybutyrate.

  9. Gamma-hydroxybutyric acid (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.”

  10. 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.

  11. 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

  12. GHB is the initials for Gamma Hydroxybutyric Acid but it has various street names such as “liquid E,” “liquid X,” “G,” and is known as the classic “date rape” drug. It has the unusual distinction of being classified as a controlled substance under both Schedule I and Schedule III of the Controlled Substances Act.

  13. GHB is a narcotic or controlled substance and is regulated under the federal Controlled Substances Act; accordingly, its sale, possession for sale or driving a motor vehicle while under its influence is unlawful under Health and Safety Codes 11350 and HS 11377, as well as California Vehicle Code 23152(a).

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