Many people think that the police have to arrest them with narcotics or controlled substances to face drug crime charges. However, possessing drug paraphernalia is just as wrong under California law. This crime can subject you to an incarceration period and fines if convicted. You want to act fast and seek legal counsel if you have been charged. At Pasadena Criminal Attorney, we handle all drug-related crimes, including possession of drug paraphernalia. As soon as you reach out to us, we will move fast to defend your rights while mounting a solid defense to obtain you the best possible outcome. If we do not have your case dismissed, we will do all we can to have your penalties reduced.
Defining the Crime of Possession of Drug Paraphernalia
Health and Safety Code (HSC) 11364 is the law that criminalizes possessing drug paraphernalia. For the judge to find you guilty of illegally possessing drug paraphernalia in California, the prosecution has to prove various elements making up the case, otherwise called elements of the crime. They include:
- You had possession of paraphernalia
- You knew the paraphernalia was there
- You were aware the item was paraphernalia
Let us look at the key terms making up the crime elements to better understand the crime of possessing drug paraphernalia per HSC 11364.
The Element of Possession
Per HSC 11364, possession can be constructive or actual. You actively possess an item when you have it on you. For instance, you actively possess drug paraphernalia when it is in your pocket. Constructive possession occurs when either:
- You have control over the item in question. For instance, you have constructive possession of paraphernalia that belongs to you and left in your bedroom closet, or
- You are entitled to exercise control over the item (either personally or with someone else). For instance, you have constructive possession of paraphernalia that you share with your friend, which is kept in your friend's bathroom.
The word paraphernalia per HSC 11364 refers to a wide range of items used to unlawfully smoke, inject, or otherwise consume narcotic drugs or controlled substances. It is any device, like an opium pipe, instrument, or contrivance used to inject or smoke a drug. Under this law, drug paraphernalia examples include, with no limitation, cocaine spoons, pipes, syringes, hypodermic needles, roach clips, tourniquets, and rolling papers. Items more often linked to the sale and manufacture of narcotics are not included in the list of drug paraphernalia. These include things such as:
- Balloons, capsules, and any other container used to package or conceal drugs
- Spoons, bowls, blenders, and any other mixing device used for compounding illegal drugs, and
- Scales or balances used for measuring and weighing drugs
These items are excluded because possessing items linked to drug sale or manufacture is often punished under HSC 11351, California's law on drug possession with intent to sell, or HSC 11352, selling or transporting controlled substances instead of under HS 11364, drug paraphernalia possession law.
Drug paraphernalia could also include prevalent household items when there is proof that can link them to the use of drugs, like a razor blade or compact mirror used in consuming cocaine. These objects are not drug paraphernalia in themselves. However, when they are associated with cocaine use, they could be deemed paraphernalia, and you might be subject to paraphernalia possession charges.
Hypodermic needles and syringes are excluded under the drug paraphernalia possession law when you have possessed them lawfully and obtained them from an approved source— for instance, having them prescribed by a physician or purchasing them from a pharmacy so you can use them to inject a legal drug.
Narcotic Drugs or Controlled Substances
Under HSC 11364, a narcotic drug or controlled substance is simply a term used to define a category of given drugs or drug-resembling substances. These generally include opiates, hallucinogens, depressants, and stimulants. Some commonly used narcotics and controlled substances under these categories are PCP, cocaine, heroin, and methamphetamine.
Marijuana is particularly exempt from drug paraphernalia possession law. Drug crimes that involve marijuana-related paraphernalia are punished separately under the state's marijuana laws. According to Proposition 64, the state's marijuana legalization statute, most consumption of marijuana for recreational purposes is not illegal anymore.
Knowledge That You Possessed Paraphernalia
For the judge to find you guilty of possessing drug paraphernalia, the prosecution must show that you were aware you had the paraphernalia and that the item was paraphernalia. It would not be fair to hold a person liable for possessing paraphernalia if they did not know they had the item in the first place. By this, it means, for instance, that if you borrowed your friend's vehicle and law enforcement discovered paraphernalia in the passenger seat or trunk, you should not be convicted if you never knew the paraphernalia was in the auto. Likewise, if, for example, your friend hid their paraphernalia in your house without telling/asking you, maybe because they knew law enforcement officers were going to obtain a search warrant for the home, you are not guilty of paraphernalia possession unless you knew about it and agreed to it.
Knowledge That It Is Paraphernalia
To be convicted of paraphernalia possession, you need not know the precise name of the item. All that counts is that you are aware the item is paraphernalia. Interestingly, the judge may deduce these two knowledge requirements have been satisfied by the mere fact that you had the paraphernalia. The judge could also assume knowledge depending on your behavior after the police discovered the paraphernalia.
People Excluded From Prosecution Under HSC 11364
Various individuals are excluded from criminal liability under HSC 11364, possession of drug paraphernalia law. They include:
- Veterinarians, podiatrists, dentists, doctors, and pharmacists
- Retailers, wholesalers, or manufacturers licensed by the State Board of Pharmacy to transfer, sell, or prescribe hypodermic needles, syringes, and other items meant for using to inject controlled substances into the body
- Law enforcement officers or anybody who works under their immediate supervision or direction
Penalties for Violating HSC 11364
The drug paraphernalia possession crime is charged as a misdemeanor. Possible penalties if convicted include a maximum of six months in jail and up to a thousand dollars in fines. A conviction under HSC 11364, or even just an arrest, could also result in professional consequences for a person with a professional license. For instance, a teacher accused of breaking this law might be placed on an immediate leave of absence pending the resolution of their case.
Drug Diversion Eligibility
Some persons found guilty of possessing drug paraphernalia will qualify for an alternative sentencing option called a drug diversion program. People guilty of non-violent narcotics abuse or possession crimes like HSC 11364 are offered drug rehabilitation instead of jail. This kind of alternative sentencing option is available under Prop 36 and PC 1000 California's deferred entry of judgment or drug diversion program. If you enroll in a drug diversion program, you first plead no contest or guilty to your paraphernalia possession charge. As a probation condition, the judge requires that you complete drug rehab. You are likely to be required to do drug tests as another probation condition.
If you undergo drug rehab successfully and finish your probation, the judge will dismiss your paraphernalia possession charges. But if you fail to do so, the judge can impose the initial jail sentence for your crime. And if you are simultaneously found criminally liable for HSC 11364 violation and another misdemeanor that does not involve drug use or simple possession (which includes DUID) or any felony, you will not qualify to enroll in a drug diversion program.
Fighting HSC 11364 Violation Charges
Drug paraphernalia possession is a severe crime that carries harsh penalties. Fortunately, you are not punished as soon as you are charged. The law allows you to defend yourself against these charges and prove your innocence. There are several legal defenses against an HSC 11364 violation that an experienced criminal defense can help you argue, which may lead to your charges being dropped or reduced. Common ones include:
The Police Discovered The Paraphernalia During an Unlawful Search and Seizure
Often, the police discover drug paraphernalia during an unlawful search and seizure. If the police discovered your drug paraphernalia through an unlawful search or seizure, the judge would dismiss the paraphernalia as proof leading to dismissed or reduced charges. Every United States citizen is protected from illegal search and seizure by the Fourth Amendment to the constitution. Therefore, arresting officers have to adhere to all the legal procedures when making an arrest. If the proof against you was acquired through illegal means, your lawyer can prove it to the court and have the proof suppressed, which could, in turn, lead to you prevailing in your case.
You Did Not Know The Paraphernalia Existed
Even if the law enforcement officers catch you with drug paraphernalia in your possession, you should not be convicted under HSC 11364 drug paraphernalia possession if you were unaware you had the item. There are several scenarios where this legal defense to drug paraphernalia possession charges could apply. A few of these scenarios are:
- Someone left their pipe in your vehicle on the passenger's seat
- Someone borrowed your hoody then left a miniature cocaine spoon in its pocket
- Someone put a syringe in your handbag to avoid an arrest themselves
You Were Not Aware the Item Was Drug Paraphernalia
Again, even if law enforcement officers find you in possession of paraphernalia, you are not criminally liable for breaking HSC 11364 if you were unaware it was drug paraphernalia. This legal defense works best for defendants without any criminal record, particularly narcotics conviction history. Remember that for the judge to find you guilty, the prosecution must prove you knew very well that the object you had was used to consume drugs. If you reasonably thought the device was something different, you should not be convicted of this crime.
To establish whether or not you were aware an item is a paraphernalia, the judge considers any past drug crime convictions, expert testimony regarding the item's use, how the device was displayed for sale, and your statements regarding its use. If these factors show you lacked knowledge, you should not be found guilty of violating HSC 11364.
The Object Was Not Paraphernalia
Just because the item resembles something that could be used to inject or otherwise consume illegal drugs does not necessarily mean it is indeed paraphernalia. Perhaps it is just an object you use for administering prescription medication to your injured or sick animal. Or, it could be a pipe you use for smoking tobacco. For the judge to convict you of possessing drug paraphernalia, the prosecuting attorney must demonstrate that you had the item. Any other object does not meet this criterion.
You Were Not In Possession of the Paraphernalia
For the judge to find you guilty of drug paraphernalia possession, the prosecutor must establish that you did have the paraphernalia on you or had control over it. If that was not the case, you should not be found guilty. As we earlier discussed, possession can either be constructive or actual. You lawyers can argue that you being in a position to access an instrument or device used to inject or otherwise consume controlled substances or being close to it does not mean it was yours.
It Was Marijuana Paraphernalia
The judge will not convict you for possessing paraphernalia if you use it to inhale marijuana or tobacco. This is because tobacco use is legal in California. For instance, if you were caught in possession of a water bong, your attorney could assert that it was for lawful tobacco smoking and not pot. However, if marijuana residues are present in the device you had, you can be prosecuted under a different law— HSC 11357, marijuana possession.
You Are Authorized to Possess Syringes or Hypodermic Needles
Diabetic patients or patients with other health conditions require hypodermic syringes and needles. Besides being used for medical purposes, these devices are also linked to heroin consumption. If your lawyer can assert that you are legally authorized to possess these devices, the judge cannot convict you of this offense. You are legally allowed to have hypodermic needles in your possession if:
- You have less than ten syringes or needles
- You acquired them from an approved source
- They are only for own use
Since the prosecutor focuses on showing that you did not have legal authorization, a skilled criminal defense lawyer can argue that the syringes or needles were for medical use and you obtained them from an approved source, such as a doctor or nurse.
Entrapment is the act of government agents or the police encouraging or inducing an individual to commit an offense when the possible criminal shows a desire not to execute the criminal activity. The police entrapment defense effectively works if the encouragement to commit the wrongdoing originated from the government agents/police and not the criminal in question.
You Are a Pharmacist, Nurse, Doctor, Retailer, or Manufacturer of the Paraphernalia
If the police caught you with drug paraphernalia and your profession authorizes you to possess it, for instance, as a nurse, your lawyer can argue that your possession of the object was not unlawful.
To argue the insufficient evidence defense under HSC 11364, your lawyer could prove to the prosecution that it does not have adequate proof to have the judge find you guilty of drug paraphernalia possession. They could do this by presenting mitigating factors or evidence that the prosecuting attorney did not meet all elements of the crime by demonstrating that the proof presented is either insubstantial or insufficient.
Crimes Related to Possession of Drug Paraphernalia
HSC 11364 California's drug paraphernalia possession law relates closely to several other drug crimes. These crimes are related because they share most if not a few elements. This means one crime can be charged alongside or instead of the other. On this note also, one crime may be a lesser included offense or a more severe crime than the other. Related crimes to HSC 11364 violation include:
HSC 11550, Under the Influence of Controlled Substance
An offense commonly charged alongside drug paraphernalia possession is being under the influence of those drugs. HSC 11550 makes it an offense to be intoxicated with a narcotic not legally prescribed or controlled substance. This crime is considered a misdemeanor punished by a maximum jail sentence of a year, a probation sentence of five years, possible community service, and drug counseling. If you are caught intoxicated with drugs while driving (DUID), the consequences will be harsher.
HSC 11350, Simple Possession of a Controlled Substance
Possessing a controlled substance for own use only can be charged alongside drug paraphernalia possession. This is because if you use drugs, it is more likely that you have a device you use for administering them. Simple drug possession is mostly a misdemeanor, and a conviction is punished by a maximum of a year in jail. The type and amount of illegal substance you had and whether it is your first or subsequent offense will also affect your sentence.
HSC 11364.7, Manufacturing and Transporting Drug Paraphernalia
HSC 11364.7 forbids the possession, transportation, manufacturing, or furnishing of drug paraphernalia if you are aware or should reasonably be aware that it will be utilized in activity associated with illegal narcotic sales or use. This law also punishes grownups who furnish children with drug paraphernalia or possess hypodermic needles on school grounds with intent (or aware) that a child will utilize the needles to administer narcotics. HS 11364.7 is a more severe crime than possession of drug paraphernalia under HSC 11364. Based on what section of the law you have violated, you face either a misdemeanor or felony charges.
If convicted of a misdemeanor, you will face a jail sentence of one year and up to one thousand dollars in fines. For a felony conviction, you will face three or two years, or sixteen months in prison, and up to $10,000 in fines.
HSC 11364.5, Business Possession of Drug Paraphernalia
Another paraphernalia law related to HSC 11364 is HSC 11364.5. HSC 11364.5 illegalizes running a business whereby drug paraphernalia is sold, displayed, or stored for use with legal drugs except if it is stored in a room inaccessible to children (that is, individuals under eighteen years) who are not in the company of their parents. You will not be subject to criminal penalties if you violate this law. However, you stand to lose your business permit or license. Also, the police will seize any paraphernalia, which you will forfeit to the state.
HSC 11365, Presence During Unlawful Controlled Substance Use
HSC 11365 makes it an offense to be present when another party is using an illegal drug and to aid and abet their controlled substance use. This crime is considered a misdemeanor punishable by a possible jail term of six months. You can face both HSC 11364 and HSC 11365 violation charges if, for instance, you are caught with drug paraphernalia about to be used or being used by another person.
Find a Drug Crimes Defense Attorney Near Me
If you have been accused of possessing drug paraphernalia, you want to contact a drug crimes defense attorney as soon as possible. A lawyer will help you learn more about the charges against you and potential legal consequences. A conviction of any drug-related offense can have a life-changing impact on your professional and personal life if you do not fight the charges. At Pasadena Criminal Attorney, we understand how California drug laws and the criminal justice process work. Regardless of the circumstances surrounding your drug crime arrest, having one of our lawyers review your case could be your best chance to avoid the most severe outcome. We serve clients in Pasadena, CA, and the surrounding areas, accused of drug crimes or other criminal charges, and we are available 24/7 for a free consultation. Call us at 626-689-2277.