If charged with drug paraphernalia possession in California, you are looking at stiffer penalties upon conviction, just as though you had possessed the actual drug. Drug paraphernalia possession is punishable by a potential fine and jail time. A conviction also leads to a criminal record that could impact your capability to rent a house or secure employment or negatively affect other aspects of your life.
If accused of paraphernalia possession, you want to take your situation seriously and talk to a drug crimes attorney about your legal options and potential outcomes. An attorney can assist you in making informed decisions regarding how best you can proceed after being charged.
At Michele Ferroni Pasadena Criminal Attorney Law Firm, we have successfully represented clients against drug offenses for decades. Our early involvement in your case could significantly affect your case outcome. For example, we may talk the prosecutor out of filing formal charges.
Our early intervention is one of our best strategies to assist our clients in avoiding life-altering consequences accompanying a drug offense conviction. If arrested or charged with drug paraphernalia possession or any other drug offense in Pasadena, please contact us for a consultation.
The California Crime of Possessing Drug Paraphernalia— HSC 11364
Drug paraphernalia possession is an offense criminalized under HSC 11364. This law forbids possessing paraphernalia used to inject or smoke controlled substances unlawfully. Under HSC 11364, 'controlled/regulated substances' is a term that defines a category of specific narcotics and narcotic-like substances. Generally, these include opiates, hallucinogens, depressants, and stimulants. Commonly used regulated substances within the mentioned categories include PCP, cocaine, heroin, crack cocaine, and meth.
Marijuana is particularly exempt from drug paraphernalia possession law. Drug crimes involving marijuana-related paraphernalia are criminalized separately under marijuana laws. Under Prop 64, the marijuana legalization statute, most personal use of recreational marijuana is not illegal anymore.
For the court to pronounce you criminally liable for this offense, the prosecutor should demonstrate the following elements constituting the violation beyond any reasonable doubt:
- You illegally possessed paraphernalia.
- Conscious of the fact that you had the item.
- You knew about the object's nature as paraphernalia.
Definition of Terms Constituting the Elements of the Crimes
Various key terms constitute the elements of drug paraphernalia possession, which the prosecution needs to prove. These are possession, knowledge, and paraphernalia.
Under Health and Safety Code 11364, possession or control could be constructive, actual, or joint. You have actual control of something if that thing is on your body. For example, you have actual possession of paraphernalia if the paraphernalia is in the pocket of the shirt you are wearing or in your hand.
Constructive possession arises when you can exercise control of an item's location or are entitled to be in charge of it. For example, you constructively possess paraphernalia if you have it in your car, bedroom drawer, or kitchen counter. The essential part of constructive possession is even if an item is at some other place, it is still yours, and you can have physical possession.
Joint possession is when you share possession with somebody else. For example, you possess paraphernalia jointly if you use it with your colleague and the item is at your workplace in your drawer.
You must have known you had paraphernalia to be found guilty of violating HSC 11364. Additionally, you must have known the item is indeed paraphernalia. If the prosecution cannot prove you did know you possessed paraphernalia or did know the tool you had was paraphernalia, you have not violated HSC11364.
Note, however, that the prosecution is not required to prove you knew the name of the paraphernalia you possessed to be convicted. It is sufficient that you generally knew what you possessed was paraphernalia.
Paraphernalia refers to a broad range of things, including anything you may use to smoke, inject, inhale, or otherwise administer a controlled substance. Generally, paraphernalia falls under a dealer-specific or user-specific group. Common user-specific drug paraphernalia includes hypodermic needles, syringes, spoons, freebase kits, roach clips, bongs, tourniquets, pipes, rolling papers, or any small container used for concealing drugs.
Although hypodermic syringes and needles are exempted from drug paraphernalia charges if they are for your own use, you have them lawfully and obtained them from an approved source, like having a doctor prescribe them and purchasing them from an authorized drugstore so you can administer a legal drug.
User-specific paraphernalia might also include ordinary household objects if evidence exists connecting them to regulated substance use, like razor blades or compact mirrors employed in cocaine use. These pieces of equipment are not deemed paraphernalia per se. Although, when the prosecution can link them to cocaine consumption, they can qualify as paraphernalia, leading to you having a paraphernalia possession case to answer under HSC 1164.
Dealer-specific drug paraphernalia is any item a dealer uses to manufacture, package drugs or prepare narcotic portions for sale on the streets. Examples include baggies, scales & balances, blenders, capsules, bags, bowls, spoons, and balloons. Dealer-specific drug paraphernalia generally leads to drug possession intending to sell or sale/transportation of controlled substances instead of paraphernalia possession charges.
When a police officer catches you with paraphernalia in your possession, they could arrest you at the scene and later charge you with drug paraphernalia possession, sale/transportation of regulated substances, or drug possession intending to sell.
How this crime is charged depends on whether the paraphernalia you were found with was for drug dealing reasons or personal use. Other factors include whether or not the police discovered controlled substances in your possession, your criminal history, the quantity of the regulated substance found on you, and whether you have any past drug offense convictions.
Certain people are exempted from facing charges under Health and Safety Code 11364. They include:
- Law enforcement officers or anybody working under their immediate direction or supervision.
- State-licensed podiatrists, veterinarians, dentists, doctors, and pharmacists.
- State-licensed retailers, wholesalers, and manufacturers who prescribe/transfer/sell hypodermic syringes/needles or other instruments meant to be used for the administration of controlled substances.
Penalties for an HSC 11364 Violation
Paraphernalia possession is deemed a misdemeanor. If convicted, you will face a potential jail term of not more than six months or misdemeanor probation. Also, you could be subject to a fine not exceeding one thousand dollars.
A conviction also means you will have a permanent criminal record. Having a drug-related conviction record can jeopardize your ability to:
- Acquire a green card, citizenship, or immigration visa if you are a non-United States citizen.
- Have a professional license, particularly if it is related to pharmacy, teaching, or healthcare work.
- Rent a house if your prospective landlord reviews your criminal record.
- Secure a job when a criminal conviction appears during background checks.
The judge will impose certain probation conditions related to drug paraphernalia possession charges if sentenced to probation. These probation terms may include the following:
- Submit to random drug testing.
- Do community service.
- See a probation officer regularly as required.
- Not violate any law (except a traffic infraction).
- Enroll in drug counseling classes.
These are just a few of the probation conditions a judge can impose. If you violate any of these terms, the judge can sentence you to the maximum jail sentence allowed under the law. But the court will drop HSC 11364 violation charges if you successfully serve your probation sentence.
Drug Diversion Instead of Incarceration
Paraphernalia possession is among the crimes listed under 1000 PC that can qualify an offender for drug diversion programs. You may be eligible for drug diversion under 1000 PC if the following conditions are met:
- You have not been found guilty of a felony within the past five years.
- You have not already been through drug diversion within the past five years.
- You have not had parole/probation revoked.
- Your case does not entail evidence of a drug violation ineligible for drug diversion.
- Your HSC 11364 charges do not involve violence or threats of violence.
- You do not have prior drug convictions.
You generally must enter a guilty plea to paraphernalia possession if the judge orders you to enroll in a diversion program. But rather than imposing jail time or a fine against you, the judge will allow you to complete drug abuse treatment. After completing treatment and meeting any other court-ordered conditions, the paraphernalia possession charges are dismissed.
The advantage of enrolling in a diversion program is that you will receive the help you need if you have a drug abuse problem and may succeed in regaining control of your life. Additionally, by completing substance abuse treatment, you will not have a drug-related conviction on your criminal record.
This can be helpful later when applying for employment or enrolling in college. An experienced drug crimes legal counsel can assist in negotiating for the judge to agree to order a drug diversion program as a sentencing alternative to criminal consequences such as a jail term.
Defending Against Paraphernalia Possession Charges
If accused of possessing paraphernalia, you should immediately retain a knowledgeable drug crimes attorney to help defend against your charges. Your legal counsel can examine your case details to determine what defenses to apply. The following are some effective defenses your legal counsel can argue to have you acquitted of your drug paraphernalia possession charges.
You Did Not Possess Paraphernalia
Whether you had a prohibited item or not is not always straightforward. Proving possession, particularly constructive possession, depends on joining the dots to create a picture of you possessing drug paraphernalia. However, what if investigators join those dots wrongly or certain dots are missing? What if investigators found paraphernalia in a common place at your home, like the kitchen, but you also live with other people?
For the court to pronounce you guilty under HSC 11364, the D.A. must show beyond any reasonable doubt you possessed the paraphernalia. If some dots are missing or your attorney can prove they can be joined to create a contrasting picture, the judge should not convict you of the charges against you.
Lack of Requisite Knowledge
For the judge to sentence you for possessing paraphernalia, the prosecution must prove that you did not only know you had paraphernalia but also that the instrument was indeed paraphernalia.
This means the prosecution must have evidence that you used the instrument for injecting, smoking, or otherwise administering drugs. Just because an item is prevalently viewed as paraphernalia does not imply it is how you utilized it.
Your attorney may successfully defend you against the possession charges if the prosecution cannot prove you used the item to administer controlled substances and were unaware it was paraphernalia,
Unlawful Search and Seizure
Per the Fourth Amendment to the United States Constitution, a police officer cannot search or seize your property if they do not have a valid search warrant or probable cause to believe you are breaking the law. Controlled substance-related cases are often based on searches and seizures, and there are usually problems with how law enforcement executes the searches and seizures.
Your lawyer could request that the evidence against you be excluded from the case if the police officers obtained it through an unlawful search and seizure, violating your constitutional rights. They can do this by filing a motion to suppress evidence. Without this evidence, the prosecutor's case will greatly weaken.
You Are Approved To Have Hypodermic Needles and Syringes
Has the state legally authorized you to possess hypodermic needles and syringes? If yes, the judge cannot convict you under HSC 11364 if found in possession of one. Hypodermic syringes and needles are prevalently connected to heroin use.
However, most people require these instruments to treat specific medical conditions, for example, diabetes. The court cannot find you criminally liable under HSC 11364 for having a hypodermic syringe or needle if the law authorizes you to possess it. The state authorizes you to have a hypodermic syringe or needle if:
- You have it for your own use.
- You obtain it from a certified source.
- You have at most ten syringes/needles.
The prosecutor must prove that you are not lawfully authorized to have the hypodermic syringes and needles. Your lawyer can claim the instruments were legally issued by a certified entity or person, such as a hospital, doctor, or pharmacy, and that your possession of the paraphernalia was medically related.
Police entrapment is when a police officer encourages or induces a person to perpetrate a crime when the person does not show any desire to act criminally. The defense of police entrapment works well if the inducement to perpetrate the illegal activity came from the police, not the person in question.
What you had was Marijuana Paraphernalia.
If accused of having drug paraphernalia mainly used with marijuana, the judge should not convict you under HSC 11364. These instruments are also utilized for the lawful consumption of tobacco. The judge cannot convict you of possessing paraphernalia under Health and Safety Code 11364 if the instrument is primarily used for inhaling or smoking marijuana.
Because tools like glass pipes and bongs can also be utilized to lawfully smoke tobacco, having them will not result in criminal liability. But if found with any of these instruments and it has a small quantity of bhang or residue, the prosecutor can charge you with marijuana possession under HSC 11357(b).
For the judge to convict of possessing paraphernalia, the prosecution must prove all the elements constituting the crime beyond a reasonable doubt. Your attorney could therefore argue the prosecuting attorney lacks adequate evidence to obtain a conviction. The lawyer could also present mitigating circumstances or poke holes in the prosecution's case, weakening it.
Related Crimes to Paraphernalia Possession
Apart from simple paraphernalia possession, California law has criminalized numerous related crimes involving delivering and manufacturing paraphernalia or furnishing the paraphernalia to children. The following are related crimes that can result in criminal liability.
HSC 1164.7(b), Manufacturing or Delivering Drug Paraphernalia
According to HSC 1164.7(b), it is a criminal offense to deliver, furnish, or transfer paraphernalia, knowing the person you are delivering, furnishing, or transporting it to will use it to consume narcotics. This violation is a misdemeanor. A conviction carries a period not exceeding 12 months in jail and up to $1,000 in fines.
HSC 1164.7(c), Furnishing Paraphernalia to Children
HSC 1164.7(c) prohibits anyone eighteen years of age and older from furnishing, delivering, or transferring paraphernalia to a child (someone under the age of 18). Anyone who commits acts prohibited under this law will face misdemeanor charges. A conviction carries 12 months in jail and a fine not exceeding $1,000.
HSC 1164(c), Possessing a Hypodermic Needle on School Ground
HSC 1164(c) prohibits the possession of a hypodermic needle on the grounds of a private or public elementary, high, junior high, or vocational school when a person knows a minor will use it to administer a regulated substance. This violation is a misdemeanor carrying 12 months in jail and a fine not exceeding $1,000.
HSC 11364.5, Business Furnishing of Paraphernalia
Under Health and Safety Code 11364.5, it is against the law to operate or maintain a business in which paraphernalia is offered, displayed, sold, or kept unless it is displayed or kept in a different room where minors are excluded if not accompanied by a grown-up. Violating this law will not result in criminal liability. However, it will be a reason for non-renewal or revocation of your business license. A violation could also adversely impact any future attempt to secure a license.
Other related crimes to paraphernalia possession charges include:
HSC 11365, Aiding and Abetting the Illegal Use of Drugs
HSC 11365 criminalizes being present while another person uses drugs, aiding and abetting their regulated substance use. The crime is a misdemeanor carrying a jail term of not more than six months and a fine not exceeding 1,000 dollars. You may be accused of an HSC 11365 violation and drug paraphernalia possession if found with paraphernalia that someone else is using or about to use.
HSC 11350, Drug Possession
You may face drug possession charges under HSC 11350 and paraphernalia possession charges under HSC 11364 because if you consume regulated substances, you probably have an instrument you use for the same. Possessing drugs is a misdemeanor offense. A conviction carries a period not exceeding 12 months in jail. The quantity and type of the drug you had and whether you have a prior conviction for a drug offense will also impact your sentence.
HSC 11550, Under the Influence of a Drug
Violating HSC 11550 is a crime commonly prosecuted along with paraphernalia possession. HSC 11550 criminalizes being under the influence of a regulated substance, including prescription medication. This misdemeanor offense carries a jail sentence not exceeding 12 months, court fines, and misdemeanor probation. If caught under the influence of drugs while driving, you may be charged with driving under the influence of drugs (DUID), whose consequences are harsher.
HSC 11352 Drug Transportation or Sale
HSC 11352 prohibits the selling, furnishing, administration, giving away, transportation for sale, or importation of drugs. You can face HSC 11352 and HSC 11364 violation charges because if you usually sell or transport drugs, you probably have paraphernalia to give away to your clients. For example, violating HSC 11352 is a felony.
Potential penalties upon a first conviction are formal probation, up to five years in jail (or up to nine years if found to have transported drugs for sale in more than two counties), and a fine not exceeding 20,000 dollars.
Find an Experienced Defense Lawyer Near Me
You should contact a skilled drug crimes lawyer as quickly as possible if arrested or accused of drug paraphernalia possession to know more regarding the criminal charges you face and for legal representation. Being convicted of drug paraphernalia possession could severely affect various aspects of your life.
We at the Michele Ferroni Pasadena Criminal Attorney Law Firm understand how the state criminal justice system works. Regardless of your case facts, having us evaluate your case is one of your best chances to avoid harsh penalties. We serve defendants facing prosecution in Pasadena and the neighboring cities. Call us at 626-628-0564 for a consultation and case review.