For adults, generally yes. Salvia divinorum and salvinorin A are not listed in California’s controlled substance schedules, and Penal Code section 379 makes it a misdemeanor to furnish either one to someone under 18. Two other rules still apply to adults: the impaired-driving law covers any drug that impairs driving, and California’s analog law can reach an unlisted substance in some cases.

Not on California’s drug schedules

California lists its controlled substances in five schedules, in Health and Safety Code sections 11054, 11055, 11056, 11057, and 11058. Neither Salvia divinorum nor salvinorin A appears in any of them, including Schedule I’s list of hallucinogenic substances in section 11054(d).

Penal Code 379: the rule for minors

Penal Code section 379 applies to anyone who sells, dispenses, distributes, furnishes, administers, or gives Salvia divinorum or salvinorin A, or anything containing either, or offers to do any of those, “to any person who is less than 18 years of age.” It is a misdemeanor, and the statute caps the sentence at six months in county jail, a $1,000 fine, or both. The section took effect January 1, 2009, and its history shows no amendment since. It does not address adult possession, adult use, or a sale or gift between adults.

Where adults can still face charges

  • Driving. Vehicle Code section 23152(f) makes it unlawful to drive while under the influence of any drug. Under Vehicle Code section 312, a “drug” is “any substance or combination of substances, other than alcohol,” able to impair a person’s driving to an appreciable degree. A substance does not need to be scheduled to meet that definition.
  • The analog law. Health and Safety Code section 11401 treats a “controlled substance analog” the same as the Schedule I or II drug of which it is an analog, for purposes of the state’s drug-offense chapter. An analog is a substance whose chemical structure is substantially similar to a Schedule I or II drug, or one that has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect substantially similar to or greater than such a drug. The statute does not name salvia. In People v. Davis (2013) 57 Cal.4th 353, a case about MDMA, the California Supreme Court held that the chemical name of a substance not listed in any schedule was not enough; the prosecution needed evidence or a stipulation about the substance’s chemical structure or effects.

What this means in practice

  • For an adult, possessing, using, or buying salvia is not a scheduled-drug offense in California.
  • If you sell or give it to anyone, first confirm that the person is 18 or older; an offer alone can violate section 379.
  • Do not drive after using it. The driving law turns on impairment, not on whether the substance is legal to possess.
  • How a product is marketed can matter: the analog definition includes a substance “represented as having” an effect substantially similar to or greater than that of a Schedule I or II drug.

For charges involving scheduled drugs, see drug crimes.

To talk through a charge involving Salvia divinorum or another substance, call the Law Offices of David S. Chesley at (800) 755-5174.