How To Defend Against Ketamine Charges
Ketamine is a drug that has been in legal use for decades as an anesthetic, primarily in veterinary medicine. However, it is also a controlled substance that can be dangerous when misused—which is why California has laws that criminalize the personal possession or sale of ketamine outside the boundaries of medicine.
Possessing ketamine (special K) is illegal without a prescription. In California, numerous laws regulate its availability. Health and Safety Code 11377 HS prohibits the personal possession of ketamine and is also the primary statute used by prosecutors to charge someone possessing a controlled substance.
HS 11377 prohibits possessing ketamine without a valid prescription, possessing a larger amount than authorized if you have a prescription and the possession of another person's prescribed ketamine. Illegally possessing ketamine is a misdemeanor crime in California, and you could be eligible for a drug diversion program discussed below.
Health and Safety Code 11379.2 HS prohibits possession for sale or sale of ketamine. This statute is more severe than simple possession under HS 11377 discussed above because it means you possessed enough ketamine that it could be sold to other people.
Violations of HS 11379.2 are a “wobbler” that can be charged as a misdemeanor or felony, depending on the details of the case and your criminal record. If you're convicted of drug crimes involving ketamine, you could face up to 3 years in prison and fines up to $10,000. In this article by our Los Angeles criminal defense lawyers, we will examine these laws in greater below.
What Is Ketamine?
Ketamine is a narcotic classified as a "dissociative anesthetic," which means that it alters your perception of reality by separating your sensations from your perceptions. It was initially developed for use on animals in the 1960s but was soon approved for human use, and it was commonly used as a battlefield anesthetic during the Vietnam War.
However, the drug has unwanted side effects, especially evoking hallucinations or out-of-body experiences as the user "comes down" off the drug. Today, ketamine is limited medically to veterinary use and occasionally on children in surgery because children seem to be resistant to the side effects.
It is ketamine's hallucinatory characteristics that have made it popular in recent years as a "club drug" frequently passed around at parties and concerts under street names like "Special K," "Vitamin K," "K," "Kit Kat," and "Cat Valium."
If slipped into someone's drink, it can also be used as a "date rape" drug. The federal government has listed ketamine as a Schedule III controlled substance, making it illegal for people to possess or distribute the drug recreationally.
What Statutes Apply to Ketamine Charges in California?
The laws criminalizing ketamine are embodied in the California laws discussed below.
Health & Safety Code 11377 HS: illegal possession of a controlled substance. This makes it a crime to possess any controlled substance, including ketamine, without a valid prescription, to possess more than the prescription allows, or to possess someone else's prescribed medication.
Health & Safety Code 11379.2 HS: possession of a controlled substance for sale or distribution. This is the more serious offense of possessing enough of a controlled substance (including ketamine) that it is apparent the person intended to distribute it illegally.
Vehicle Code 23152(f) VC: driving under the influence of ketamine. This is the primary statute in California to charge someone with driving under the influence of drugs, called a “DUID.” In most cases, these are charged as a misdemeanor crime. Related crimes include defending cocaine, ecstasy, heroin, and methamphetamine charges.
What Are the Penalties If Convicted?
The possible penalties you face if you are convicted of ketamine-related charges will depend on the type of charge you're facing and any underlying circumstances.
- Illegal possession (HS 11377) of ketamine is a misdemeanor offense. If convicted, you could face a maximum sentence of 6 months in county jail and fines up to $1000, although judges have been known to hand down reduced sentences such as probation;
- Possession for sale (HS 11379.2) is a wobbler offense, which can be charged either as a misdemeanor or a felony. If it's been accused as the latter, you could be facing up to 3 years in prison and fines up to $25,000 if convicted.
What Are the Drug Diversion Programs?
Suppose you are convicted of a non-violent drug crime like ketamine possession and have had no felony convictions in the last five years. In that case, you may be eligible to participate in a pre-trial diversionary program as prescribed under Penal Code 1000 PC. Further, you might be eligible for Proposition 36 or a California drug court.
If you're accepted into a drug diversion program, you'll have to fulfill several conditions within the program's time frame. These may include, but are not limited to:
- Completion of an approved drug treatment or education program;
- Restitution made to any victims as a result of your crime;
If you fulfill all the terms of your drug diversion program, your charges will be dismissed, and any related criminal records will be sealed, making it as if you had not been charged with a crime.
At the current time, only those convicted of personal possession of ketamine would be eligible for drug diversion; charges of possession for sale would not be eligible even if charged as a misdemeanor.
What Are the Common Defenses for Ketamine Charges?
An attorney can use several defenses to defend you against ketamine possession or possession for sale charges. These include:
- Illegal search and seizure. If ketamine was found on your person during an illegal search and seizure by police, the charges against you might be dismissed;
- You did not intend to sell the ketamine. If successful with this defense, your charges may be reduced from possession for sale to personal possession;
- You had a valid prescription. This is rare with ketamine charges because ketamine is typically administered directly by an anesthesiologist in the hospital, but the charges may be dropped if you had a valid prescription.
Perhaps we can show that law enforcement officers discovered or seized the drugs after they engaged in an illegal search or seizure in violation of California laws. We might file a Penal Code 1538.5 PC motion to suppress evidence in some cases.
If granted by the judge, the prosecution might be willing to reduce the charges or even drop the case. Likewise, perhaps we can show there was police misconduct and that your charges should be dismissed.
For example, maybe the police fabricated the evidence or used entrapment, which is unlawfully luring someone to commit a crime they would have otherwise not committed. Perhaps we could argue that you were unjustly accused, wrongfully arrested, or there is insufficient evidence to make a case beyond a reasonable doubt.
Maybe we can negotiate with the prosecution for reduced charges or a case dismissal. Further, through early prefiling negotiations with law enforcement and the District Attorney, we might be able to convince them not to file formal criminal charges in the first place, called a “DA reject.”
The top-rated criminal law firm of Eisner Gorin LLP is located in Los Angeles County, and we serve people across the state of California. You can contact us for an initial case consultation at (877) 781-1570 or fill out the contact form.