According to California’s Health and Safety Code 11364, a person is not allowed to possess “an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance” in the state. Health and Safety Code 11364 is California’s law on the possession of drug paraphernalia. If someone in California is found to be in possession of drug paraphernalia, he or she could face charges in violation of Health and Safety Code 11364.

Getting a conviction for the possession of drug paraphernalia

After someone has been charged with violating California Health and Safety Code 11364, it is a good idea to get in contact with a skilled California defense attorney, who has success defending against drug paraphernalia charges. In order for the prosecution to convict an individual of the possession of drug paraphernalia, the following elements must be proven:

  1. The defendant had control over, or had the right to control, the discovered drug paraphernalia,
  2. The defendant knew the drug paraphernalia was present, and
  3. The defendant knew the items were, in fact, drug paraphernalia.

Better understanding California’s Health and Safety Code 11364

What does it mean to have “control” over drug paraphernalia? According to Health and Safety Code 11364, someone has control over drug paraphernalia when it has been found in his or her possession. For example, if a person carries a hypodermic needle in his pocket or if a needle is found on his or her nightstand, he or she has “control” of it. When the needle is found in someone’s pocket, he or she has “active control” over it. When the needle is found on someone’s nightstand, he or she has “constructive control” over it.

What does “paraphernalia” mean? According to California law, any item commonly used for the illegal consumption – be it through injection or smoking -of narcotic drugs on controlled substances is known as “paraphernalia.” Drug paraphernalia often includes pipes, cocaine spoons, syringes and hypodermic needles, as described in Health and Safety Code 11364. It is important to note, syringes and hypodermic needles, in an amount of 10 or less, are not considered to be drug paraphernalia if they were prescribed by a practicing physician for the injection of a legal drug.

What are “controlled substances”? A controlled substance, or a narcotic drug, is a class of drugs and drug-like concoctions. These can include depressants, hallucinogens, opiates and stimulants. More specifically, California laws identify cocaine, heroin and PCP as narcotics.

Some people are exempt from being charged under the State of California’s paraphernalia law. For example, doctors, dentists and veterinarians, as well as manufacturers and retailers, who are licensed through the California State Board of Pharmacy, are allowed to prescribe, sell or transfer syringes and needles for lawful purposes.

Penalties for violating Health and Safety Code 11364

If convicted in California for a misdemeanor charge related to the possession of drug paraphernalia, an individual could face up to six years in jail and a fine of up to $1,000. Additionally, a professional convicted could lose their professional licenses, as a result of the crime. At times, an individual will be eligible to take part in a drug diversion program to avoid jail time.

Defending against a violation of Health and Safety Code 11364

A California criminal defense attorney skilled in defending against the possession of drug paraphernalia can advise a defendant on several different legal defenses that could be presented in court in response to California’s Health and Safety Code 11364. These defenses often include that:

  1. The defendant lacked control of the drug paraphernalia in question. If a criminal defense attorney can prove his or client did not control the paraphernalia, then he or she will not be convicted of a crime. For example, perhaps the syringe the police found, pursuant to a California search warrant, in one’s home actually belonged to the individual renting a room from the individual. This means the individual did not truly possess the paraphernalia, even though it was found in his or her home.
  2. The defendant was in possession of an item that was not actually drug paraphernalia. Often, an object will appear to be paraphernalia when it is not. For example, someone may be found to be in possession of 10 hypodermic needles, but they may, in fact, be used to inject needed medication into one of the individual’s horses on his or her farm.
  3. The defendant did not know the object uncovered was considered drug paraphernalia. If a criminal defense attorney can explain that his or her defendant lacked the knowledge that the item was drug paraphernalia, he or she typically won’t be found guilty of a crime. For example, someone may have purchased a pipe for someone else as a gift, thinking it was for the purpose of smoking tobacco. He or she may have not realized it was made for the injection of a controlled substance instead.
  4. The defendant did not know the drug paraphernalia was present. Perhaps, someone borrowed a vehicle from someone else and left his drug paraphernalia in the back seat. Maybe, someone lent his jacket to a friend and that friend put several syringes in the coat pocket, forgetting it was not his jacket. At times, the drug paraphernalia may even have been planted by someone trying to avoid being found in violation of California’s drug paraphernalia law.
  5. An illegal search was conducted to seize the drug paraphernalia. For example, a police officer can not just enter one’s home or look through one’s vehicle without a justifiable reason to do so. If an item was found during an illegal search, an aggressive criminal defense attorney can convince the court to throw out the evidence. If accomplished, all charges could be dropped against the defendant.

Legal References:

  1. California Health and Safety Code 11364
  2.  California Jury Instructions, Criminal (CALJIC 16.040)
  3.  California Jury Instructions, Criminal (CALJIC 16.040)
  4. California Health and Safety Code 11364
  5.  California Health and Safety Code 11377