The stakes are high in California if you're facing charges of possessing drug paraphernalia. The consequences of this offense are more severe than those for possessing a controlled substance. This crime is classified as a California misdemeanor, with potential jail time and penalties. If the police have held you on this offense, you should quickly seek the services of a competent drug paraphernalia possession attorney.
If you're facing charges of possessing drug paraphernalia, you can contact our attorneys at the California Criminal Lawyer Group in Anaheim. We can investigate the case's specifics, notify you of your constitutional rights, and prepare an effective legal defense strategy to fight the allegations.
An Overview of Possession of Drug Paraphernalia
Drug paraphernalia includes any equipment, tool, or gadget that a person can use to administer illegal drugs by injecting, smoking, or otherwise consuming them. The provisions of California HSC 11364 make it illegal to own or carry "any opium pipe or other apparatus, instrument, contrivance, or paraphernalia utilized for illegally smoking or injecting controlled substances."
Household Objects That Can be Considered Drug Paraphernalia
According to California drug paraphernalia statutes, a person can be found guilty of the crime even if the materials were household objects if they were used or intended to be used to consume, inject, or inhale a controlled substance illegally.
The intention could be considered indirect if:
- The item is put together in a way that is typical of drug use.
- The household item contains traces of controlled substances.
However, if you only have a household item you could use for ingesting controlled drugs, you probably won't be charged with possessing drug paraphernalia.
Controlled Substances and Narcotic Drugs
Some medications and substances are classified as controlled substances or narcotics. Drugs that fall under this category include hallucinogens, opiates, stimulants, and depressants. A controlled substance is categorized into five schedules based on its potential to cause harm, medicinal use, and abuse.
- Schedule I—these drugs have a significant abuse potential and no generally recognized medicinal purpose.
- Schedule II—these drugs have a high misuse potential that can cause serious physical or psychological dependence but are nevertheless approved for medical usage under stringent rules.
- Schedule III—these drugs have a lower abuse risk than those in Schedule I or II. Even though they have an acknowledged medicinal purpose, abuse can cause mild to moderate physical or psychological dependence.
- Schedule IV—these substances have a lower potential for drug abuse and a lower level of physical or psychological dependence than Schedule III drugs. The substances are approved for medicinal use.
- Schedule V—these drugs are significantly less likely to be misused and have legitimate medicinal uses.
Typical examples of controlled substances and narcotics in these categories are cocaine, PCP, methamphetamine, and heroin. Marijuana is not included in California HSC 11364. Marijuana laws govern drug offenses involving marijuana paraphernalia.
Persons Exempt from Punishment Under HSC 11364
Individuals who are not subject to criminal prosecution under California HSC 11364 include:
- Law enforcement officers or anyone under their immediate supervision or control.
- Dentists, medical professionals, pharmacists, podiatrists, veterinarians, retailers, manufacturers, and wholesalers who have received certification from the State Board of Pharmacy to transfer, sell, or prescribe syringes, hypodermic needles, and other items used to administer a controlled substance into the body.
Types of Paraphernalia
California law does not offer an official list of what constitutes drug paraphernalia. The law is intentionally vague since many household objects can be modified to be used as paraphernalia.
Some of the most popular types of paraphernalia include:
- Water bongs or pipes.
- Rolling papers.
- Roach clips.
- E-cigarettes.
- Hookahs.
- Freebase cocaine tools.
- Straws.
- Tin foil.
- Pipes.
- Rags.
- Razorblades.
- Chillums are also commonly referred to as "one-hitters" or single-use pipes.
- Pacifiers.
- Glow sticks.
- Little spoons.
- Lollipops.
- Playing cards.
California law offers an exception to possessing drug paraphernalia. The exception was put in place to prevent the transmission of HIV and other infections transmitted by blood among individuals who use injectable substances like heroin.
A professional drug defense lawyer can help you mount a solid defense against the allegations and keep you updated on the specifics of California's drug paraphernalia laws and how they apply to the case.
Certain types of paraphernalia used to package or make drugs, such as scales, bags, capsules, and balloons, are also exempt from the drug paraphernalia possession law. These objects are often considered evidence of "intending to sell" charges instead of possession.
Elements of the Crime
The prosecution needs to prove certain elements of the case to convict you of possessing drug paraphernalia under California HSC 11364a:
- The defendant owned an object that could be used to ingest or inject controlled substances.
- The defendant was aware that the object in question was a drug paraphernalia.
- The accused person was aware that the object could be used to consume or inject a controlled substance illegally.
Types Of Drug Paraphernalia Possessions
Understanding the different kinds of drug paraphernalia possessions and their respective charges can assist you in preparing for what to expect during trial. You should have a solid defense ready if you face charges for drug paraphernalia possession. This is because the penalties differ from case to case.
There are 3 different drug paraphernalia possession charges that a person could face:
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Actual Control
This occurs when drug paraphernalia is discovered on the accused's person. For instance, if law enforcement officers saw you holding paraphernalia and they stopped you, you would be convicted of actual possession.
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Constructive Control
This occurs when drug paraphernalia is stored and controlled by the accused person. For instance, if you regularly use a tablespoon to take heroin and the law enforcers find it under your mattress, they could take you into custody for constructive control of the tablespoon. This also applies even if you're not in the building when it's searched.
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Joint Control
This occurs when multiple individuals own the drug paraphernalia. For instance, if two individuals were riding in a car together and the law enforcement agencies found drug paraphernalia on each of them, they would be charged with joint control.
Penalties for Possessing Drug Paraphernalia
California law classifies possession of drug paraphernalia as a misdemeanor offense. If convicted of violating HSC 11364, the offender could be sentenced to a maximum of 180 days behind bars. This includes a potential $1,000 cash fine and other penalties listed below.
Probation
A probation sentence involves a supervision period that can be issued in place of incarceration. Probation terms are common for first-time offenders who violate HSC 11364, though they are not guaranteed. In any HSC 11364 case, a probation sentence is regarded as informal probation.
This implies that the offender gets monitored by the courts rather than a probation officer. Additionally, probation terms are subject to regulations or requirements that need to be adhered to prevent a probation infringement.
The probation terms in HSC 11364 cases often include the following:
- Pay hefty cash fines.
- Not breaking the law while on probation.
- Enroll in drug rehabilitation programs.
- Submit to a drug test.
- Secure and keep a job.
- Serve house arrest or work release.
- Participate in community service.
Diversion Program
Certain HSC 11364 cases could be eligible for a diversion program. Diversion occurs when the offender enters a guilty plea to the offense. After that, the offender completes the diversion terms comparable to probationary requirements. If the accused completes the diversion program, the case against the offender will be terminated, indicating that the accused has been diverted from prosecution.
A diversion program would be an appropriate option if a professional's license risks being revoked due to a criminal conviction. Diversion isn't always viable in every case involving drug paraphernalia possession.
Work Release Program
In most cases, if the offender receives a jail sentence under California HSC 11364, he/she could be eligible to participate in a work release sentence in place of serving his/her time behind bars. This program involves manual labor meant to act as an option for incarceration.
Not all defendants found guilty of HSC 11364 violation will be subjected to a work release program or house arrest. This is particularly the case in HSC 11364 violations where the accused accepts a jail term, and the sentencing magistrate forbids him or her from changing the conditions of his/her plea deal.
Additional Penalties
A conviction for possessing drug paraphernalia could result in any of the following penalties in addition to any probation or jail terms:
- Enrolling in mandatory drug rehabilitation program.
- Driver's license suspension if drug paraphernalia was found in an automobile.
- Immigration issues.
- Paying hefty court fees and fines.
- Loss of employment.
- Loss of eligibility to join the armed forces.
- Potential loss of rights in family law courts, including adoption and child custody, to name a few.
- Losing the right to participate in diversion programs normally for repeat HSC 11364 defendants.
- Losing your firearm ownership rights for no more than ten years.
- Suspension or revocation of your professional occupational licensure like dentists, doctors, teachers, lawyers, or nurses, to name a few.
Businesses that allow individuals to consume, manufacture, or store illegal drug paraphernalia or drugs on their facilities risk losing their respective business licenses or leases.
Legal Defenses to Possession of California Drug Paraphernalia Charges
A knowledgeable drug paraphernalia criminal defense attorney will know which defenses to raise on your behalf. Below are common legal arguments that you can raise in such cases:
No Knowledge
Your knowledge that the item you had was drug paraphernalia is among the elements the prosecution needs to prove. For instance, you could defend yourself if you were arrested for possession after you had agreed to carry a pipe for your friend without realizing it was being used for drugs.
This could be difficult to demonstrate, and the jurors will consider the circumstances under which you discovered the equipment and your previous experiences with controlled narcotics and criminal record. If you don't have a criminal record or a history of drug abuse, your defense attorney might be able to convince the jury that everything was just a mistake by pointing out the latter.
It's also a valid defense when you claim to have had no knowledge of having control or ownership of the contraband. You could have a good defense if, for example, you bought a used briefcase that turned out to contain drug paraphernalia you weren't aware of.
Lack of Possession
The prosecution must prove beyond a reasonable doubt that you were physically possessing the drug paraphernalia in question. The prosecution has three potential avenues for proving this:
- Actual Possession—the law enforcers discovered that item on your person or inside your car.
- Constructive Possession—you had the authority to use the paraphernalia.
- Joint Possession—you, as well as another individual, both had the paraphernalia in your possession.
A skilled defense attorney can help you counter any possible legal arguments the prosecutors can use to convict you of paraphernalia possession.
The Item is Mistaken for Drug Paraphernalia
You should put up a legal defense if the equipment weren't drug paraphernalia. Nonetheless, even seemingly ordinary house objects can be considered drug paraphernalia, depending on their use.
Besides that, even objects that are frequently used for smoking or injecting narcotics could be used for other things. If a police officer saw you using a glass pipe to smoke tobacco, he or she may presume you were breaking the law by possessing and using it for illegal drug purposes.
Legal Possession
Syringes and hypodermic needles are legal to have in your possession if:
- There was a legitimate prescription or permission from a certified medical professional on file before your detention.
- The needles and syringes were solely for your individual use.
- You had not more than 10 needles or syringes.
Miranda Violation
A judge could rule that part of or all the statements you made while being detained by police officers be concealed or not allowed to be used as evidence if they were made without your Miranda rights being read to you.
Unlawful Search and Seizure
You continue to have a legitimate defense regardless of whether the prosecution can prove all three components necessary to show drug paraphernalia possession against you, as long as the proof against you was acquired illegally. If the authorities violate your constitutional rights during any search, whatever evidence they uncover cannot be used in court.
This evidence, also called the "fruit of the poisonous tree," could consist of anything recovered during a house or vehicle search. Additionally, it can stop police officers from utilizing any admissions obtained during or following unauthorized searches.
Drug Diversion
Certain Health & Safety code 11364 defendants are eligible for drug diversion programs, which serve as alternatives to prison time. Those convicted of non-violent drug possession and use offenses like HSC 11364 are frequently granted drug rehabilitation instead of prison time.
An alternative sentence can be found under:
- Proposition 36.
- Penal Code 1000 Drug diversion program or deferred entry of judgment.
You could be eligible for Penal Code 1000 if:
- You did not have a drug-related conviction besides HSC 11364 within 5 years prior to the purported execution of the offense.
- There were no actual threats of violence in the purported crime.
- There is no record of a drug conviction in your past.
- There's no evidence of a subsequent offense involving controlled harmful drugs or narcotics that are not eligible for drug diversion programs.
- You haven't had your probation or parole revoked.
- You haven't committed a felony in the last five years.
To be eligible for drug diversion, a defendant must plead no contest or be guilty to the underlying criminal charges. The judge grants you sufficient time to finish the drug rehabilitation program rather than passing a sentence. You must adhere to several probationary requirements, which include:
- Consenting to a drug test.
- Undertaking drug rehabilitation.
The court will drop the charges against you once you've finished drug rehab and your probationary period. If not, the court could order that you serve prison time.
If you're convicted of HSC 11364 and any other misdemeanor that doesn't entail a felony or a simple drug possession, you don't meet the criteria for a drug diversion program. You can sign up for drug diversion with the help of your knowledgeable drug defense lawyer.
What Distinctions Exist Between Possession of a Controlled Substance and Possession of Drug Paraphernalia?
You can be prosecuted for possessing drug paraphernalia even if you don't have the narcotics on your person. Even if narcotics are not discovered with the equipment, devices, or instrument, you can still be convicted for drug paraphernalia possession.
Moreover, you could be prosecuted for controlled substance possession even if you do not have any drug paraphernalia. Nevertheless, you could also be prosecuted for drug paraphernalia possession along with possessing controlled substances. The severity of the charges could increase if you are accused of both.
Other Related Offenses
Possession of drug paraphernalia can sometimes be charged separately, but this doesn't happen very often. It could also be charged in place of a more serious offense as part of a plea bargain. If you've been accused of violating HS 11364, Drug Paraphernalia possession, you should be aware of the following related offenses:
Possession of a Controlled Substance Under Health & Safety Code 11350
For obvious reasons, simple possession of a restricted narcotic for one's use is sometimes charged alongside possessing drug paraphernalia. Most of the time, this accusation carries a misdemeanor sentence that might result in up to one year in jail. The penalty could vary depending on the type and quantity of illegal substances in your possession and if it is your first offense.
Health & Safety Code 11550 Being Under the Influence of Controlled Substances
Use of illegal substances is also common, often occurring simultaneously with possession of drug paraphernalia. In California, the simple usage of illegal substances is considered a misdemeanor punished by up to one year in jail, a maximum of five years serving your probation term, drug counseling, along with community service. The penalties are more severe if the person is arrested for driving while impaired by drugs (DUID).
HS 11364.5 Operating a Business That Sells Drug Paraphernalia
Operating a business in which drug paraphernalia or such items are stored, displayed, or sold is a specific form of possession of drug paraphernalia. Some of these things could be sold legally, provided they are stored in a separate section where only grownups are permitted to enter and purchase them.
Although no direct criminal penalties are associated with this violation, you can still be subject to standard HS 11364 charges and the possibility of losing the business license.
Production and Transportation of Drug Paraphernalia Under HS 11364.7
In addition to simply possessing drug paraphernalia, it is against the law to manufacture, transport, or "furnish" the items to other people, as stated under HS 11364.7.
This provision is typically invoked when the accused person was aware—or ought to have been aware—that the paraphernalia will be used in connection with the sale and/or use of illegal substances.
This law also forbids possessing needles and syringes on school property with the intent to give them to a child or supplying the paraphernalia to children.
Depending on the case's specifics, this offense may be classified as a felony or a misdemeanor. When charged as a misdemeanor, the maximum sentence is one year behind bars as well as a fine of $1,000. A felony conviction carries a sentence of sixteen months to three years in prison and a fine of $10,000.
Aiding/Abetting the Unlawful Usage of Controlled Substances Under HS 11365
In California, it's an offense to be in a location where someone else is unlawfully using a banned drug if you're encouraging or facilitating that person's drug usage in any manner.
This is considered a misdemeanor, with a maximum sentence of six months in jail. This offense frequently goes along with HS 11360 since many people are present and possess drug paraphernalia when assisting another person in taking illegal substances.
Find an Anaheim Drug Crimes Defense Attorney Near Me
An arrest for possession of drug paraphernalia will likely leave you feeling stressed and anxious about the future. A criminal conviction can devastate a person's life, livelihood, and reputation. The good news is that a knowledgeable defense attorney can fight fiercely on your behalf to save your future.
Our attorneys at the California Criminal Lawyer Group in Anaheim have years of combined experience and are dedicated to giving each client the personalized respect and consideration necessary to achieve the best case results. Working with us will ensure that your legal rights are safeguarded. Call us today at 714-766-0965.
