Possession of GHB in Florida

Gamma-Hydroxybutyric Acid, known more commonly as GHB, is designated as a Schedule I controlled substance in Florida.

As a Schedule I substance, GHB is considered to have a high potential for abuse and no currently accepted medical use in the United States.

It is a Third Degree Felony to possess less than 1 kilogram of GHB.

Trafficking Threshold

Possession of 1 kilogram or more of GHB is prosecuted as Trafficking in GHB. Importantly, the weight is determined not by how much pure GHB is in a mixture, but by how much the mixture containing the GHB weighs.

As a result, a person could have a mixture that contain less than 1 kilogram of pure GHB, but because the mixture's total weight is more than 1 kilogram, the person would be guilty of Trafficking in GHB in Florida and subject to a minimum-mandatory prison sentence.

Because of the serious consequences for such a simple crime, it is important to know the:

Penalties for GHB Possession

The crime of Possession of GHB is classified as a Third Degree Felony and is assigned a Level 3 offense severity ranking under Florida's Criminal Punishment Code.

If convicted of Possession of GHB, a judge can impose any combination of the following penalties:

  • Five years of probation,
  • Five years in prison, or
  • A fine of up to a $5,000.

Driver's License Suspension

Pursuant to Florida Statute 322.055, any person convicted of Possession of GHB will have their driver’s license or driving privilege revoked for one year by the Florida DHSMV.

Defenses to GHB Possession

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, specific and common defenses to the crime of Possession of GHB are:

Constructive Possession

If the GHB was found in a place where more than one person had access, the prosecutor would have to comply with the law of constructive possession, which requires the prosecutor to prove the following two elements before you can be convicted of Possession of GHB: [1]

  1. Knowledge of the GHB's presence;
  2. Dominion and control over the GHB.

Below are scenarios where it can be argued the prosecutor could not meet their burden of proving constructive Possession of GHB.

Scenario 1: You were stopped while driving a friend's car and police find a container of GHB in the glove box, they would be unable to convict you of Possession of GHB unless they had some proof that you knew the container of GHB was present.
Scenario 2: You were driving your car, had a friend with you, and your friend takes a container of GHB and places it at his feet. The police then stop you, see your friend's container, and arrest both of you. They should be unable to convict you of Possession of GHB, because even though you knew the container of GHB was present, your friend is the only person who exercised dominion and control over it.

Illegal Search and Seizure

More often than not, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search; or they may coerce a person into agreeing to a search. If we can prove that either instance occurred, the courts will suppress the resulting evidence as having been illegally obtained.

Other suppression possibilities that may present themselves are: if law enforcement obtained a search warrant in bad faith or if you were arrested without probable cause.

Lack of Knowledge

It is an affirmative defense to the crime of Possession of GHB if you can prove that you did not know the substance in your possession was GHB. Importantly, this defense requires you to testify to your lack of knowledge of the substance's illegal nature. [2]

Overdose Defense

Any person who is experiencing a drug-related overdose and needs medical assistance, or a person assisting the person that needs medical assistance, is immune from prosecution for possession of GHB if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. [3]

Prescription Defense

While it is rare, some people are actually prescribed GHB. So if you can produce a valid GHB prescription that pre-dated your arrest, you will have an absolute defense to the GHB charge. [4]

Temporary Possession

The defense of temporary possession can be raised where a person takes momentary, temporary, or transitory possession of GHB from the true owner. Under such circumstances, the person is not considered to be in legal possession of the GHB because the person never exercised complete dominion and control over the GHB. [5]

Examples of temporary possession are when a person is quickly handed GHB by the true owner during a police encounter, such as a traffic stop, and asked to hide it; or when holding GHB in the presence of a drug dealer for the sole purpose of verifying or testing the GHB prior to purchasing it; or when passing the GHB from the owner to a third person.

Contact Criminal Defense Lawyer Richard Hornsby

If you have been charged or arrested with the crime of Possession of GHB in Central Florida or the Greater Orlando area, contact Criminal Defense Lawyer today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

  1. GG v. State, 84 So. 3d 1162 (Fla. 2nd DCA 2012)
  2. Florida Statute 893.101
  3. Florida Statute 893.21
  4. Florida Statute 893.13(6)(a)
  5. Campbell v. State, 577 So. 2d 932 (Fla. 1991)