California Health and Safety Code 11375(b)(2) HS: Possessing Benzodiazepines Without a Prescription

Under California law, possessing benzodiazepines without a valid prescription is a criminal offense governed by California Health and Safety Code Section 11375(b)(2) [HSC 11375(b)(2)].

While benzodiazepines ("benzos") are widely prescribed central nervous system depressants, possessing them without authorization from a licensed healthcare provider can lead to criminal prosecution, fines, and potential jail time.

Statutory Definition (Legal Language)

Under California Health and Safety Code Section 11375(b)(2), every person who possesses any controlled substance specified in subdivision (c) without the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, is guilty of an infraction or a misdemeanor.

Pursuant to Health and Safety Code Section 11375(c), the controlled substances subject to this section include, but are not limited to, alprazolam, diazepam, lorazepam, clonazepam, temazepam, chlordiazepoxide, and other designated depressants or prescription sedatives.

Key Statutory Definitions

To understand charges under Health and Safety Code 11375(b)(2), four core legal concepts define criminal liability:

Controlled Substance: Any drug, chemical, or substance strictly regulated by state or federal law due to its potential for abuse, physical dependency, or psychological addiction.
Valid Prescription: An official order for medication issued by a physician, dentist, podiatrist, or veterinarian licensed to practice medicine in California, intended for the specific individual possessing it.
Usable Amount: A quantity of the drug sufficient to be used as a controlled substance, as opposed to mere useless traces or microscopic residue.
Types of Legal Possession:
- Actual Possession: The medication is directly on your physical person (e.g., in a pocket, hand, or clothing).
- Constructive Possession: The medication is in a location you control or have the right to control (e.g., inside your vehicle, glove compartment, nightstand, or residence).
- Joint Possession: Two or more individuals share right of control over the controlled substance.

What Must Be Proven to Convict

To secure a conviction under HSC 11375(b)(2), the prosecution must prove all of the following elements beyond a reasonable doubt (CALCRIM No. 2304):

Possession: The defendant unlawfully possessed a controlled substance listed under Health and Safety Code 11375(c) (such as Xanax, Valium, or Ativan).
Knowledge of Presence: The defendant knew of the substance's presence.
Knowledge of Substance Nature: The defendant knew of the substance's character or nature as a controlled substance.
Usable Amount: The controlled substance was in a usable amount.
Lack of Valid Prescription: The defendant did not hold a lawful prescription issued by a licensed healthcare professional.

Penalties Section

Possession of benzodiazepines under HSC 11375(b)(2) is categorized as a "wobblette," meaning prosecutors have the discretion to charge the offense as either a non-criminal infraction or a misdemeanor depending on the defendant's criminal history and case circumstances.

Charge Level	Maximum Jail Time	Maximum Fine	Record & Probation Impact
Infraction	No jail time	Up to $250	No criminal record; line-item fine only
Misdemeanor	Up to 6 months in county jail	Up to $1,000	Informal probation, drug counseling, criminal conviction record

Related Offense Penalties (When Charges Escalate)

Possession for Sale (HSC 11375(b)(1)): If law enforcement finds packaging, large quantities, scales, or cash indicating intent to distribute, charges escalate to a misdemeanor or felony, punishable by up to 3 years in county jail under PC 1170(h).
Being Under the Influence (HSC 11550): Being unlawfully under the influence of controlled substances carries up to 90 days to 1 year in county jail.
Driving Under the Influence of Drugs (VC 23152(f)): Operating a motor vehicle while impaired by benzodiazepines—even with a prescription—carries standard misdemeanor DUI penalties, driver's license suspension, and mandatory DUI school.

Defense Strategies

Valid Prescription Defense: The accused possessed the medication pursuant to a legitimate prescription issued by a licensed California medical practitioner.
Lack of Knowledge: The defendant was unaware that the medication was present (e.g., borrowed a friend's jacket or car) or was unaware of its controlled nature.
Lack of Possession or Control: The drugs belonged to another person, and the accused lacked direct physical control or constructive dominion over them.
Illegal Search and Seizure: Law enforcement seized the drugs in violation of Fourth Amendment rights (e.g., an unlawful traffic stop, warrantless home search, or defective search warrant), leading to evidence suppression under Penal Code 1538.5.
No Usable Amount: The item seized consisted solely of unusable residue or microscopic dust.
Temporary Possession for Disposal: The defendant briefly took physical possession of the drug strictly for the purpose of disposing of it or handing it over to law enforcement.

Frequently Asked Questions

Can you be charged under HSC 11375(b)(2) if you carry pills in an unlabelled bottle?

Yes. Carrying a validly prescribed controlled substance outside its original prescription bottle is technically a misdemeanor under California Health and Safety Code 11357 or Vehicle Code provisions, and law enforcement can arrest you under HSC 11375(b)(2) if you cannot immediately verify a valid prescription.

What is the difference between HSC 11375(b)(2) and HSC 11377(a)?

HSC 11375(b)(2) specifically targets listed prescription depressants like benzodiazepines and carries misdemeanor or infraction penalties. HSC 11377(a) covers stronger, non-narcotic controlled substances like methamphetamine, anabolic steroids, or GHB, which carry heavier standard misdemeanor penalties under Health & Safety guidelines.

Do benzodiazepine charges qualify for drug diversion in California?

Yes. Most first-time, non-violent offenders charged with simple possession under HSC 11375(b)(2) qualify for pretrial diversion programs under California Penal Code 1000 (PC 1000) or Proposition 36. Successful completion results in complete dismissal of the charges and no criminal record.

Can an out-of-state prescription defend against an HSC 11375(b)(2) charge?

Yes. Possessing a lawful, active prescription issued by a licensed medical practitioner in another U.S. state provides a full affirmative defense to simple possession charges in California.

What are the most common benzodiazepines prosecuted under HSC 11375?

The most commonly cited benzodiazepines under California Health and Safety Code 11375 include Alprazolam (Xanax), Diazepam (Valium), Lorazepam (Ativan), Clonazepam (Klonopin), Temazepam (Restoril), and Chlordiazepoxide (Librium).

Is possession of benzodiazepines without a prescription a felony in California?

No. Simple possession under HSC 11375(b)(2) is a wobblette (infraction or misdemeanor). However, if there is evidence of intent to sell, manufacture, or transport under HSC 11375(b)(1) or related statutes, the prosecution can file felony charges.

Can you be convicted under HSC 11375(b)(2) if you did not own the drugs?

Yes. Ownership is not an element of the crime. Under California law, prosecutors only need to establish that you had actual or constructive possession (control or right of control) over the benzodiazepines, regardless of who bought or owned them.

What happens if I complete a Deferred Entry of Judgment (PC 1000) program?

Upon successful completion of the education/treatment program under PC 1000, the court dismisses the HSC 11375(b)(2) charge entirely. Legally, the arrest is deemed never to have occurred for most employment background checks.

Hypothetical Examples

Example 1 (Constructive Possession / Lack of Knowledge): Driver A borrows a roommate's vehicle. Police perform a traffic stop and locate loose Xanax pills in the center console. Driver A had no knowledge the pills were inside the car. Driver A is not guilty under HSC 11375(b)(2) due to lack of knowledge and lack of control over the substance.
Example 2 (Infraction vs. Misdemeanor Filing): Person B, who has no prior criminal history, is found with two Valium tablets inside a backpack during a park contact. Prosecutors exercise discretion under HSC 11375(b)(2) to charge the offense as a minor infraction with a $250 fine rather than a misdemeanor.
Example 3 (Drug Diversion / PC 1000): Person C is arrested for carrying four Klonopin pills without a prescription. Person C accepts entry into a California Penal Code 1000 pretrial diversion program, completes an 8-week court-approved drug education course, and earns a full case dismissal.

Related Laws

California Health and Safety Code 11375(b)(1) [HSC 11375(b)(1)]: Possession for sale, transportation, or distribution of listed depressants and benzodiazepines.
California Health and Safety Code 11377(a) [HSC 11377(a)]: Possession of dangerous non-narcotic controlled substances (e.g., methamphetamine).
California Health and Safety Code 11350(a) [HSC 11350(a)]: Unlawful possession of narcotic controlled substances (e.g., cocaine, heroin, prescription opioids like oxycodone).
California Health and Safety Code 11550 [HSC 11550]: Being unlawfully under the influence of a controlled substance in public or private.
California Vehicle Code 23152(f) [VC 23152(f)]: Driving under the influence of drugs (DUID), including legally or illegally obtained prescription sedatives.
California Penal Code 1000 [PC 1000]: Pretrial drug diversion program allowing eligible defendants to complete education in lieu of criminal prosecution.

Why Related Laws Matter

Health and Safety Code 11375(b)(2) exists within an interconnected statutory matrix governing controlled substances in California.

Prosecutors frequently evaluate evidence to determine whether simple possession under HSC 11375(b)(2) should be elevated to distribution offenses under HSC 11375(b)(1) or combined with driving offenses under Vehicle Code 23152(f).

Understanding these statutory boundaries is essential for defense strategies: establishing simple possession allows defense counsel to steer cases away from felony state prison exposure toward diversion programs under Penal Code 1000 or Proposition 36, converting potential criminal convictions into complete case dismissals.

The Hedding Law Firm can help you. Contact us for a free case review.

Benzodiazepines