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Possession of Drug Paraphernalia

Not only is the possession of a controlled substance itself illegal under both federal and state of California law, but it's also illegal to possess "drug paraphernalia" is designed to be used for illegal drug use. The penalties for this crime are not as high as for many other drug crimes, but they can still be very serious and impactful on one's future life since it creates a criminal record.

It's easy to get falsely accused of illegal possession of drug paraphernalia, but unless you have a good lawyer representing you in court, it's not so easy to disprove such false charges. At Leah Legal, we have many years' experience in winning these types of drug crimes defense cases, as well as defeating all other related drug crime charges.

Contact us today by calling 818-484-1100, and we can give you a free legal consultation on your drug paraphernalia possession or related charge. A well seasoned legal expert will walk you through your options and help you know how best to proceed.

How Is "Possession of Drug Paraphernalia" Defined in California?

Under California Health & Safety Code Section 11364, it is illegal to possess "drug paraphernalia" if items falling under that description are possessed illegally or for an illegal purpose. Paraphernalia includes such objects as opium pipes, hypodermic needles, syringes, cocaine spoons, and a host of other things used as an instrument for illegally smoking, injecting, or otherwise consuming a controlled substance.

However, another California law has created an exception to the possession of needles/syringes (but only up to 2021 unless extended or made permanent at or before that point) IF they are for personal drug use only AND they were obtained from a source with authority to legally sell syringes/needles. The idea is to try to at least ensure drug needles are sterile even when used illegally since dirty needles are a source of many problems far beyond the drug epidemic itself.

In particular, this exception clause is meant to prevent the spread of AIDS or HIV via drug needles or of other diseases that can be transmitted by contact with contaminated blood.

Additionally, drug scales and other items used to weigh, measure, mix, compound, encapsulated, package, or hide illegal drugs are NOT included under HSC 11364 as drug paraphernalia. But that's not because it's legal to possess such items or use them but because these items, associated as they are with drug manufacture, distribution, and sale, are covered under Health & Safety Code Section 11351 (Possession For Sale of a Controlled Substance), HSC Section 11352 (Transport & Sale of a Controlled Substance), and other laws. 

What Must the Prosecutor Prove?

To be convicted of possession of drug paraphernalia (HSC 11364) in California, the prosecution must prove all of the following elements of the crime beyond all reasonable doubt:

  • You were found in control of drug paraphernalia as provided for under HSC 11364 and with all relevant exceptions (as discussed above) taken into account.
  • You were aware of the presence of the drug paraphernalia.
  • You were aware of the nature of the items in question as drug paraphernalia.

Possession under HSC 11364 is construed as "control," but this control can be either "actual" or "constructive." Actual control means you physically had the object(s) on your person or in your hand, while constructive control/possession means that you had "ownership" of the item even though it may not have been found on your person by police.

So, if you own an opium pipe for smoking opium and it's found in your dresser drawer where you store it - that's constructive control. Also, if two or more people share control over drug paraphernalia, it's considered "joint possession" and, in that case, both parties who jointly controlled it can be prosecuted under HSC 11364.

Finally, the item that counts as drug paraphernalia has to be intended for use in illegally using a controlled substance. So, if you have a syringe from a legal source and used it for a legitimate purpose, that's not drug paraphernalia. If you used an ordinary spoon to take cocaine, on the other hand, that is drug paraphernalia.

Further Exceptions

While we've noted a few exception clauses already, there are more when it comes to illegal possession of drug paraphernalia. First of all, if police officers and other law enforcement personnel, doctors, dentists, vets, manufacturers, retailers, pharmacists, and some others with a license to possess hypodermic needles or syringes possess them - that, of course, is not a violation of the law.

Secondly, under Prop 64, personal use of marijuana for recreational purposes was made legal. And at this point in time, illegal possession of marijuana related drug paraphernalia is handled under separate marijuana laws in California. It's much more difficult than before to be prosecuted for drug paraphernalia possession for use of marijuana nowadays, but in certain extreme circumstances, it can still happen.

Possible Penalties

A violation of HSC 11364, Possession of Drug Paraphernalia, is a misdemeanor crime in California. It is punishable by up to 6 months in county jail and a fine of up to $1,000. 

A conviction also creates a criminal record, which will be viewable by future potential employers and anyone else who runs a background check. Plus, an arrest on this charge can lead to suspension or revocation of state-issued professional licenses AND a mere accusation potentially could force an immediate leave of absence of a teacher pending resolution of the matter.

Drug Diversion Programs

Most often, you can qualify for entry into a drug diversion program if convicted of HSC 11364 Possession of Drug Paraphernalia. However, if you were also convicted of a felony OR of a misdemeanor that rises above simple possession or personal use of a controlled substance - then you won't be eligible for drug diversion.

What does drug diversion do exactly? It allows non-violent drug crime offenders to escape actual jail time and instead complete probation. The probation will include various programs designed to help combat drug addiction and abuse - and you agree to allow random drug testing to ensure you're not taking drugs while on the program.

Under Penal Code Section 1000, those who qualify for drug diversion can enter a no contest plea or guilty plea in exchange for entering the program. A similar set up is also provided for under Prop 36. If you complete your diversion program successfully, then at the end of the probationary period, the judge dismisses your case so you won't have a conviction on your record. But, if you fail to keep the terms of the diversion agreement, then you can be re-arrested and sent to serve the time in jail you would have served to begin with absent drug diversion.

Common Defense Strategies

We at Leah Legal understand how easy it is to be falsely accused of illegal possession of drug paraphernalia in California, and we have deep experience in defeating these types of charges. While each case is different and requires a somewhat unique defense, here are the most common defense strategies used against an HSC 11364 charge:

  1. Lack of Possession. If you did not exercise any control over the paraphernalia, you did not "possess" it and are not guilty. If the prosecution cannot prove actual, constructive, or joint possession beyond a reasonable doubt, you cannot be convicted.
  2. Not Paraphernalia. In some cases, an item not used for illegal drug use at all is assumed to be drug paraphernalia by police. It might look similar to paraphernalia, but perhaps, it's really a pipe used for smoking tobacco or something used for legitimate medical purposes.
  3. Lack of Knowledge. If you were not aware of the presence of the drug paraphernalia, because someone planted it in your apartment or on your person or a friend left it in your car, for example, then you are not guilty. Or, if you knew of the object's presence but did not realize it was drug paraphernalia, you also are innocent of this charge.
  4. Police Misconduct. If the drug paraphernalia, or alleged paraphernalia, was found during an illegal search or seizure or other violation of your Constitutional rights, then we can petition to prevent that evidence from being used in court against you. This often results in the case becoming unwinnable by the prosecution and the case is therefore immediately dropped or dismissed.

Other Related Offenses

Sometimes, a drug paraphernalia possession charge will stand alone in isolation, but quite often, other charges will accompany it. Or, it may be charged in place of a more severe crime in a plea bargain deal. Here are some of the most relevant related offenses to be aware of if you are facing an HSC 11364 Possession of Drug Paraphernalia charge:

  1. HSC 11350 Possession of a Controlled Substance

Simple possession of a controlled substance for personal use only is often charged along with possession of drug paraphernalia for obvious reasons. This charge is a misdemeanor in most cases and is punishable by up to a year in county jail. The amount and type of illegal drug possessed and whether or not it's a first offense can also affect the sentence.

  1. HSC 11550 Under the Influence of a Controlled Substance

Also commonly occurring along with possession of drugs and accompanying paraphernalia is the actual use of such drugs. If under the influence of drugs while driving (DUID), the penalties will be steeper, but in California, simple use of illegal drugs is a misdemeanor punishable by a year in jail, up to 5 years of probation, drug counseling, and possibly community service.

  1. HSC 11364.5 Business Possession of Drug Paraphernalia

It is a special type of drug paraphernalia possession violation to operate a business where you store, display, or sell such items. For legal uses, some such items can be sold if they are kept in a separate room where only adults are allowed to go and buy them. There are no criminal charges to this violation as such, but you could still face regular HSC 11364 charges plus risk losing your business license.

  1. HSC 11364.7 Manufacture & Transport of Drug Paraphernalia

Under HSC 11364.7, it is illegal to transport, manufacture, or "furnish" drug paraphernalia to others - aside from just possessing it.

This law is used mostly when the guilty party knew or should have known, that the drug paraphernalia was going to be used in relation to selling and/or using illegal drugs. Also under this statute is prohibited the furnishing of such paraphernalia to minors or the possession of hypodermic needle on school grounds with the intention of furnishing it to a minor.

This crime can be a misdemeanor or a felony depending on the details of each case. As a misdemeanor, it's punishable by a year in jail and a $1,000 fine. As a felony, you can get 16 months to 3 years in prison plus a $10,000 fine.

  1. HSC 11365 Aiding/Abetting Controlled Substance Use

It is a crime in California to "be present" where another person is illegally using a controlled substance if you are in any way aiding or abetting his or her drug use.

This is a misdemeanor and is usually punished by a maximum of 6 months in county jail. This charge often accompanies HSC 11360 because many will be present and in possession of drug paraphernalia while helping another person consume illegal drugs.

Contacting a Possession of Drug Paraphernalia Attorney Near Me

At Leah Legal, we understand that time is of the essence when it comes to defending yourself against a drug crime allegation - including against the charge of illegal possession of drug paraphernalia. 

We act fast for our clients and waste no time in beginning to build them a solid defense. And we have a proven track record of success in winning the best possible outcome for these sorts of cases.

Contact us anytime 24/7 by calling 818-484-1100 for a free, no obligation consultation. Our criminal defense attorney Leah will give immediate attention to your needs and help you defend your future and your reputation!