§ 11375 HS – Possession of Sedatives or Benzodiazepines

Health and Safety Code § 11375 HS makes it a crime to possess, possess for sale, or sell certain prescription sedatives and benzodiazepine drugs such as Valium, Xanax, Ativan, and Klonopin. Possessing these drugs without a prescription is a misdemeanor or an infraction, while selling or intending to sell these drugs can be a misdemeanor or a felony.

California sedative/benzo crime	Maximum jail/prison term (most cases)
Simple possession – 11375(b)(2) HS	6 months (for misdemeanors), though you can avoid jail by doing diversion no jail (for infractions)
Possession for sale – 11375(b)(1) HS	16 months, 2 years, or 3 years in jail (for felonies) 1 year (for misdemeanors)
Selling (“trafficking”) – 11375(b)(1) HS	16 months, 2 years, or 3 years in jail (for felonies) 1 year (for misdemeanors)
Being under the influence – 11550 HS	1 year, though you can avoid jail by doing diversion
Driving under the influence – 23152(f) VC	6 months for a first offense (though most judges grant a suspended sentence)

Below our California criminal defense attorneys provide an overview of the state sedative/benzodiazepine laws, including potential penalties and defenses:

• 1. Possession of Benzodiazepines
• 2. Possession For Sale
• 3. Sales & Trafficking
• 4. Being Under The Influence
• 5. DUI of Benzodiazepines
• 6. Best Defenses
• Additional resources

1. Possession of Benzodiazepines

California Health and Safety Code 11375(b)(2) HS makes it a crime to possess prescription sedatives and benzos without a lawful prescription. For you to be convicted, the D.A. has to prove you committed one of the following three types of “simple possession:”

1. actual possession – you knowingly carried the sedatives on your person.
2. constructive possession – you knowingly had control over the sedatives, such as by keeping them in your house, vehicle, or storage unit.
3. joint possession – you and one or more people shared control over the sedatives.

Violating HS 11375(b)(2) is a woblette, meaning it can be charged as either a misdemeanor or an infraction. Infractions carry no jail in California; instead, you face up to $250 in fines.

As a misdemeanor in California, simple possession of sedatives without a lawful prescription carries up to six months in jail and/or $1,000 in fines. However, you may be able to avoid jail and get the charge dismissed by completing a drug diversion program such as:

• Proposition 36,
• Penal Code 1000 PC, or
• California drug courts.¹

2. Possession For Sale

California Health and Safety Code 11375(b)(1) HS makes it a crime to possess prescription sedatives/benzos for the purpose of selling them. Since there is no direct way to prove your intent, prosecutors rely on circumstantial evidence.² Examples include:

• you were found with far more than a 30- or 90-day supply of prescription sedatives;
• you had large amounts of cash, which the police believe are proceeds of a drug deal;
• you were carrying a gun, which drug dealers often do; and/or
• you spend time in locations known as where drug deals usually take place.³

Violating HS 11375(b)(1) is a wobbler in California, meaning prosecutors can charge it as a misdemeanor or a felony. As a misdemeanor, possessing prescription sedatives for the purpose of selling them carries up to one year in jail and/or $1,000 in fines. As a felony, possession for sale carries:

• 16 months, 2 years, or 3 years in jail, and
• up to $10,000 in fines.⁴

3. Sales & Trafficking

California Health and Safety Code 11375(b)(1) HS makes it a crime to sell prescription sedatives. (Selling can also be referred to as “trafficking.”)⁵

Violating HS 11375(b)(1) in California is a wobbler, meaning prosecutors can charge it as a misdemeanor or a felony. As a misdemeanor, selling prescription sedatives carries up to one year in jail and/or $1,000 in fines. As a felony, selling carries:

• 16 months, 2 years, or 3 years in jail, and
• up to $10,000 in fines.⁶

4. Being Under The Influence

California Health and Safety Code 11550 HS makes it a criminal offense to be under the influence of controlled substances without a valid prescription.⁷ With regard to sedatives, the D.A. needs to demonstrate the following for you to get convicted of being under the influence:

• your physical or mental abilities are impaired “in any detectable manner;” and
• sedatives caused this.⁸

In California, being under the influence of prescription sedatives without a valid prescription is a misdemeanor. This carries up to one year in jail and/or $1,000 in fines, though the judge may agree to dismiss the case and forgo any incarceration if you complete a diversion program.⁹

5. DUI of Benzodiazepines

California Vehicle Code 23152(f) VC makes it a crime to drive while under the influence of narcotics, including sedatives.¹⁰ For you to be found guilty of DUI of sedatives, the prosecutor has to prove that the drugs:

“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

As with driving under the influence of alcohol (DUI), driving under the influence of drugs (DUID) is usually a misdemeanor. For a first-time offense, penalties include up to six months in jail, up to $1,000 in fines, a driver’s license suspension, and DUI school.¹²

6. Best Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with drug crimes involving prescription sedatives and benzodiazepines. In our experience, the following six defenses have proven very effective with prosecutors, judges, and juries in California:

Valid Prescription

You may possess and consume drugs you have a valid prescription for. As long as we can produce your prescription slip showing that a medical doctor signed off on you taking sedatives, no possession crime occurred.

Illegal Search & Seizure

If the police found the drugs through a search that violated your Fourth Amendment rights, we would ask the judge to suppress the drugs as evidence. That may be enough to weaken the state’s case to the point that they have no choice but to drop the charge.¹³

Police Entrapment

You were entrapped if undercover police coerced you into buying or selling drugs when you were not predisposed to do so. If the police’s bodycam footage shows that they placed you under duress (such as by threatening you), then the drug charge should be dropped.

No Actual Possession

The legal definition of possession requires that you are aware of the drugs being under your control. That means if someone planted the drugs on you or left them in your house without your knowledge, then you were not in possession of them and therefore cannot be found guilty of possession.

Impairment Not Caused by Drugs

If police found you behind the wheel in a sedated state, they might presume you took sedatives. However, if we can show you were suffering from something unrelated – such as a diabetic coma or plain fatigue – then no DUID charges can stand.

Possession For Personal Use

If you are accused of possession for sale, we would argue that the state’s evidence is too weak to show your “intent to sell.” For instance, if you are found with several bottles of sedatives, we could argue that you kept filling your prescription but chose not to take them. The fact this caused you to collect bottles of pills does not translate to intent to sell them.

Additional resources

For help or more information beyond California sedative/benzo laws, refer to the following:

• Narcotics Anonymous (NA) – A 12-step program to beat drug habits.
• Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
• Benzodiazepine Abuse – WebMD article about how these sedatives can impact your health in a negative way.
• Benzodiazepine Drug Information – U.S. Food and Drug Administration information on benzos.
• Benzodiazepines – Drug Enforcement Administration summary of benzos and how they work.

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Legal References