If you occasionally use drugs, there is a likelihood that you possess tools for drug use, such as spoons for heating substances like cocaine, or a pipe for smoking methamphetamine. These objects seem harmless, but under California law, it is a crime to possess them if you are using them to inject or smoke controlled substances unlawfully. Possession of such items is sufficient to put you in police custody, even if you do not have any illegal drugs.
The potential penalties for possession of drug paraphernalia are significant and more severe than penalties for personal possession of a controlled substance. If the police arrest you for the offense in or around Los Angeles, CA, you need to consult a skilled Los Angeles Criminal Lawyer to represent you. With our vast experience in drug crimes, we will investigate your case and put up an aggressive defense to fight the charges and protect your rights. Being under arrest does not mean you are guilty. We understand how the justice system works, and we focus on how to possibly keep you out of prison and keep your record clean.
California Law on Possession of Drug Paraphernalia
Section 11364 HS of California’s Health and Safety Code prohibits possession of pipes for opium inhalation. It also outlaws the possession or any materials, instrument, contrivance, or device used to smoke or inject a controlled substance unlawfully. Even an everyday household object can be deemed as drug paraphernalia if you use it to facilitate the consumption of illegal drugs.
However, this rule has a significant exception. Until 2021, you can legally possess syringes or hypodermic needles if:
- They are exclusively for your use, and
- You obtained them from a pharmacist, physician, syringe or needle exchange program, or other sources with legal authorization to provide sterile needles or syringes without a prescription.
The exception is a measure to prevent the spread of bloodborne diseases such as HIV among users of injectable drugs like heroin.
Penalties for Possessing Drug Paraphernalia
This offense is a misdemeanor punishable by:
- A maximum fine of $1,000
- A county jail sentence for a maximum of six months
- Both a fine and a jail term
The court may additionally require that you complete:
- A three-year probation
- Community service or drug counseling
- Suspension of your professional license: For teachers, real estate agents, or lawyers, a conviction or arrest for possession of drug paraphernalia could result in a suspension of your professional license.
- Additional drug crime charges: Paraphernalia provides police with probable cause to conduct a search on your person and in your car for drugs or proof of drug sale. If they find narcotics or evidence of drug distribution, you may face additional drug crime charges with stiffer penalties.
- A permanent criminal record: A conviction for violating HS 11364 will result in a lasting criminal record. Having such a record can make it difficult to:
- Rent a house if your potential landlord conducts a background check
- Find a job if potential employers check your criminal history
- Acquire or retain a professional permit, especially in the fields of teaching, pharmacy or health care
- Get approval for citizenship, green card or an immigration visa if you are a non-U.S. citizen
What the Prosecutors Must Prove
To convict you for unlawfully possessing drug paraphernalia, prosecutors must prove several facts beyond a reasonable doubt. The facts, also known as the elements of the crime, are:
- You had the power to control or had control of drug paraphernalia
According to Section 11364 HS of the Health & Safety Code, control can be constructive or actual. You have actual control of something if you physically have the item on your body. For example, you have actual control of a crack cocaine pipe if you have it in the pocket. You have constructive control when you:
- Exercise some form of control over the object. For example, you have constructive control over a crack cocaine spoon that you own, but you left it at your house.
- Have the power to have the item under your influence either with someone else or individually. For example, you have constructive control of the crack cocaine spoon that you share with your roommate, which is in the house.
You were aware the paraphernalia was present
HS 11364 defines drug paraphernalia as the various items used to illegally smoke, inject, or in any other way, consume narcotic drugs or controlled substances. Under this code, drug paraphernalia includes, but is not limited to, tiny cocaine spoons and pipes. However, until 2021, this list excludes syringes and hypodermic needles where both of these statements are true:
- The items are exclusively for personal use
- You obtained them from a syringe or needle exchange program, pharmacist, physician, or other sources that are legally authorized to provide sterile needles or syringes without a prescription.
Additionally, HS 11364 does not cover items used in the sale or manufacture of drugs. Such things include:
- Balances and scales used to weigh and measure drugs
- Spoons, bowls, blenders, and other mixing tools used to mix controlled substances
- Balloons, capsules, and other holders used to package or conceal drugs
Possession of objects associated with the illegal sale or manufacture of controlled substances is a crime under Section 11351 HS, the state’s law on drug possession with the intent to sell. It is also punishable under Section 11352 HS, the statute against transportation and sale of controlled substances.
- You knew the item was drug paraphernalia
According to Section 11364 HS, the terms “narcotic drugs” and “controlled substances” describe a category of particular drugs and other drug-like compounds. They include:
The most common narcotics and controlled substances in these categories are:
After the enactment of Proposition 64 that permits persons above 21 years to possess recreational marijuana for personal use, marijuana is not part of HS 11364. Therefore, possession of items that you use to smoke it is not a crime. However, if you use those tools for both marijuana and narcotics, you may face criminal charges for paraphernalia possession.
Specific categories of people are exempt from legal action under HS 11364. They include:
- Law enforcement officers or any other person working under their direct supervision
- People with licenses from the California State Board of Pharmacy to transfer, sell or prescribe needles, hypodermic syringes, or other objects designed for use in drug injection into the body. These people include dentists, doctors, podiatrists, pharmacists, veterinarians, retailers, wholesalers, and manufacturers.
Common Defenses to Fight Charges of Possession of Drug Paraphernalia
An arrest does not automatically translate to a conviction. Your lawyer can present several legal defenses on your behalf to fight your charges. The most common are:
- The paraphernalia was not in your control
A conviction for this crime requires you to have control of the paraphernalia. If the items are not in your control, you should not be convicted. For example, officers find a miniature cocaine spoon in your house, but it belongs to your roommate, and only the owner uses it. The spoon is in your home, but you do not have actual possession, nor the right of control over it. Therefore, the court should acquit you of the charges.
- The item was not paraphernalia
An object may resemble something used to consume or inject illegal drugs, but resemblance does not always mean that you use the object for that purpose. It could be a tobacco pipe or a syringe to administer medications to your sick animal. Only objects used as drug paraphernalia qualify for HS 11364 prosecution.
- You were not aware that the object was drug paraphernalia
Police can arrest you for possession of drug paraphernalia. However, if you did not know the item was paraphernalia, you are not guilty of violating HS 11364. This defense works best if you have no criminal history, especially concerning drugs. The court will consider the following factors to establish whether you recognize that an item is drug paraphernalia.
- Whether you have a previous drug-related conviction
- Your statement concerning the object’s use
- Testimony from an expert about the item’s use
- How you displayed the thing if it was for sale
- You were unaware of the paraphernalia’s presence
A key element in possession of drug paraphernalia is the awareness that the items are present. If you were unaware of the things, the court should acquit you of the offense. This defense can apply in numerous instances, for example:
- A friend wore your coat, and they left a cocaine spoon in one of the pockets
- A person dropped a pipe under the seat in your car
- A stranger slipped a vial in your luggage to evade arrest
- The police failed to follow the correct procedures
The constitution entitles you to freedom from unreasonable search and seizure by the government. Also known as the fourth amendment, the law requires the police to search when they have a warrant or when the warrant exceptions apply. When making traffic stops and detaining suspects, the police must comply with specific procedures and formalities to safeguard this right. The protocol includes:
- They must have sufficient probable cause for an arrest
- They must inform you of your Miranda rights before an interrogation
- They can search for evidence relating only to the crime you have committed.
Often, the police will discover drug paraphernalia while conducting an unlawful search. For example, the police pull you over for speeding, and without justifiable cause, the officers search your car, discover a cocaine pipe, and charge you with violating HS 11364. The discovery was during an illegal search. Therefore, your attorney can use a PC 1538.5 motion to suppress evidence or have the judge exclude that evidence. Also, if the police did not read you your Miranda rights, your attorney can request the judge to suppress the statements you made during interrogation. Additionally, the judge can declare the evidence to be inadmissible. In turn, your chances of winning the case will increase significantly.
- You have lawful authorization to possess the items
Usually, people associate syringes and hypodermic needles with heroin use. However, a significant number of people use them to treat certain diseases like diabetes. You can legally possess hypodermic needles or syringes when:
- You received them from any of the authorized sources
- The syringes or needles are for personal use
The prosecution must prove beyond a reasonable doubt that your possession was unlawful. Your lawyer can argue that the items are for medical purposes and that they were from an approved source, for example, a licensed doctor.
A case of entrapment
Entrapment is when government agents or law enforcement officers persuade or encourage you to violate the law when you express your wish not to participate. It occurs when a police officer engages in behavior that would induce a regular law-abiding citizen to commit a crime. Such conduct includes the use of undue pressure, false assurances, or harassment. You can use this defense if the offense originated with a government agent or the police, and not with you, but your attorney will know when best to use it in your favor.
- The evidence is insufficient
For the court to convict you, your charges must meet all the elements of that crime. The prosecutor must prove that the items were for smoking, injecting, or other ways of using illegal drugs. Just because an object seems like drug paraphernalia does not mean you used it for the same. The prosecutor must prove that you used the item for drugs, or you recognized it was for drugs. Your attorney can demonstrate that your case does not meet some elements of the offense by showing that evidence against you is either unsubstantial or insufficient.
Eligibility for Drug Diversion After HS 11364 Conviction
After a conviction for possession of drug paraphernalia, you may be eligible for drug diversion, an alternative form of sentencing. Drug diversion is available under Proposition 36 and PC 1000, deferred entry of judgment. If this is your first offense, this program allows you to avoid prosecution if you complete a drug treatment program. In the drug diversion program, you receive drug rehabilitation instead of jail time if you committed a non-violent, drug use, or drug possession crime, including HS 11364.
To qualify for drug diversion, you must enter a no contest or a guilty plea to your charges of possession of drug paraphernalia. One of the conditions for probation is that you must complete drug rehabilitation. The judge may also order a drug test as an additional requirement. If you complete drug treatment, the judge will dismiss your charges of possession of drug paraphernalia. The judge is also at liberty to sentence you to jail if you do not complete probation.
However, you will be ineligible for drug diversion if you receive a simultaneous conviction for HS 11364 and
- a felony, or
- a separate misdemeanor violation that does not involve drug use, including DUI of drugs or simple possession.
Offenses Related to HS 11364
Several drug crimes relate closely to possession of drug paraphernalia. They include:
Health and Safety Code 11364.5 HS
Under this code, it is a crime to operate a business where you store, display, or sell drug paraphernalia for use with lawful substances. An exception is when you keep the items in a room without access by minors. If the court convicts you of this offense, you will not face any criminal penalties, but you stand to lose your business permit. Additionally, the state will cease, and you will forfeit any drug paraphernalia.
Health and Safety Code 11364.7 HS
California law, under this statute, prohibits you from manufacturing, transporting, furnishing, or possessing items that you are or reasonably should be aware that they are for the sale or use of illegal drugs. You will also face prosecution under this code if you are an adult and you:
- Furnish a minor with drug paraphernalia, or
- Have hypodermic needles within school property with the intention or while you are aware that a child will inject illegal drugs using the needles.
California considers violating HS 11364.7 more grievous than possession of paraphernalia. The offense is a wobbler, and the penalties depend on your specific violation.
A misdemeanor is punishable by:
- A maximum fine of $1,000
- A county jail term, not exceeding one year
A felony carries:
- A fine not exceeding $10,000
- Imprisonment for 16 months, two or three years
Health and Safety Code 11365 HS
Under HS 11365, it is an offense to be present when another person is using a controlled substance and to abet and aid their use of that substance. If the police find you with paraphernalia that someone else is using or about to use, charges of violating HS 11365 will go alongside charges of HS 11364, possession of drug paraphernalia. Violating HS 11365 is a misdemeanor that carries a possible jail term of six months or less.
Find a Los Angeles Criminal Lawyer Specializing in Drug Crimes Near Me
Any drug-related charge can have significant consequences, even when it is a misdemeanor. You may have to pay fines or spend several months in a county jail in addition to a stain in your criminal record. If you are facing drug paraphernalia possession charges in Los Angeles, CA, you need a competent, experienced drug crimes attorney. You can call the Los Angeles Criminal Lawyer at 310-502-1314 for legal advice. We have the requisite knowledge of drug laws to fight your charges and get justice for you. We will review your case and initiate a robust defense to possibly have the court minimize the penalties or dismiss your charges.