Under California Health & Safety Code Section 11364 HSC, possession of drug paraphernalia is an illegal act that carries criminal penalties. Health and Safety Code 11364, California's "possession of drug paraphernalia" statute, refers to "an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance". Our criminal drug attorneys generally encounter paraphernalia such as needles/syringes, spoons and other devices to be used with cocaine and heroin as well as various different types of pipes for smoking crack, methamphetamine, etc. These drug cases are very common with our criminal drug attorneys in Sonoma, Napa, Marin, Lake, Mendocino and Humboldt counties.
Required Elements the Prosecutor Must Prove:
To prove a defendant is guilty of possessing drug paraphernalia, a prosecutor must be able to prove each of the following elements beyond every reasonable doubt:
- The defendant possessed an object used for unlawfully injecting or smoking a controlled substance. Possession or control may be actual or constructive. Someone actively controls something when physically carry it on their person, such as in their pocket; purse; backpack; etc. One constructively controls something when exercising control over that item, such as leaving it in one's dresser drawer or closet, having it under their vehicle seat, or having the right to exercise control over that item either individually or with another person such as leaving the paraphernalia with a friend. Obviously, if someone possesses an object such as a syringe, for some lawful purpose not involving a controlled substance, this element would not be met.
- The defendant knew of the object's presence. There are numerous circumstances that can exist in any particular case that could be used to counter the motion that somebody knew that the paraphernalia existed. Our drug defense attorneys frequently encounter cases when drug paraphernalia is present but our client was unaware of the paraphernalia presence. As our criminal drug attorneys will point out these are generally very small items in size and can exist within the confines of a car or a house and someone may not be aware of their existence. ;and
- The defendant knew it to be an object used for unlawfully injecting or smoking a controlled substance. Under Health and Safety Code 11364, "controlled substances" or "narcotic drugs" are simply terms that are used to describe a class of specific drugs and drug-like substances. In general, these include stimulants, depressants, hallucinogens, and opiates. Some of the most commonly used controlled substances and narcotics within these categories include: methamphetamine, heroin, cocaine, and PCP
Some of the most common defenses are:
- Absence of control over the paraphernalia, such as an object owned by a roommate or another occupant of a vehicle. Generally, if paraphernalia is found in the common areas of a house, i.e. the kitchen, living room, common bathroom, etc., it is not unusual for law enforcement to charge everyone who is a member of that household or who is present at the time of the discovery of the item. If an object is found in a specific person's bedroom, then generally that person will be charged with possession.
- The object wasn't paraphernalia because it was being used as a legal substance such as tobacco or, or under many circumstances, marijuana or was a syringe used to administer a prescription drug to a pet.
- It was unknown that the object constituted paraphernalia
- The presence of the paraphernalia was unknown.
- The paraphernalia was discovered during an illegal search and seizure
There may be circumstances where a defendant's possession of needles or syringes would be permissible. A defendant is legally authorized to possess these items if:
- The needles or syringes are for personal use; and if controlled substances are involved, the individual must have a current and valid prescription for the substance.
- They are obtained from an authorized source; and,
- No more than 10 needles or syringes are possessed at one time.
- Possession of a device used to smoke marijuana, without more, is not a crime.
- There is one major exception to California's law against possession drug paraphernalia, designed to prevent the transmission of HIV and other blood borne diseases among those who use heroin and other injectable drugs. Until 2021, it is legal to possess hypodermic needles or syringes if the following applies: a) they are solely for the defendant's own personal use, and b) they were acquired from a physician, pharmacist, needle or syringe exchange program, or any other source authorized by law to provide sterile syringes or needles without a prescription.
Many of these alternative defenses should be discussed with a drug lawyer to acquire the best defense possible.
Possessing drug paraphernalia is a misdemeanor and cannot be charged as a felony. The potential penalties are up to six (6) months in a county jail, and/or a maximum $1,000 fine.
Some people convicted of California's possession of drug paraphernalia law will be eligible for alternative sentencing known as Drug Diversion.; Mental Health Diversion, Military Diversion and Prop 36. Drug attorneys from Santa Rosa, Napa, San Rafael, Lakeport, Ukiah and Eureka almost always suggest diversion programs instead of criminal prosecutions, if available, Upon successful completion of a diversion program, the criminal arrest record and charges can be sealed, or, in essence, removed from your criminal history and the only folks who can see this information is law enforcement.
Furthermore, even if convicted, after completing the period of probation that will be ordered by the court as part of sentencing in any case, we can file an Expungement/ Petition to Dismiss the conviction which can add a very favorable entry to your criminal record/ history.
Drug rehabilitation is offered in lieu of jail to those who have committed non violent, drug possession and drug use offenses, including HS 11364. This type of alternative sentence is available under California Proposition 36 and under Penal Code 1000, California's Drug Diversion or "deferred entry of judgment" program.
The Law Itself: California Health & Safety Code Section 11364
- It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e) or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance that is a narcotic drug classified in Schedule III, IV, or V.
- This section shall not apply to hypodermic needles or syringes that have been containerized for safe disposal in a container that meets state and federal standards for disposal of sharps waste.
- Until January 1, 2021, as a public health measure intended to prevent the transmission of HIV, viral hepatitis, and other bloodborne diseases among persons who use syringes and hypodermic needles, and to prevent subsequent infection of sexual partners, newborn children, or other persons, this section shall not apply to the possession solely for personal use of hypodermic needles or syringes if acquired from a physician, pharmacist, hypodermic needle and syringe exchange program, or any other source that is authorized by law to provide sterile syringes or hypodermic needles without a prescription.
(Amended by Stats. 2014, Ch. 331, Sec. 8. (AB 1743) Effective January 1, 2015.)
- Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.
- The judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
- It is not unlawful for a person other than the prescription holder to possess a controlled substance described in subdivision (a) if both of the following apply:
- The possession of the controlled substance is at the direction or with the express authorization of the prescription holder.
- The sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner.
- This section does not permit the use of a controlled substance by a person other than the prescription holder or permit the distribution or sale of a controlled substance that is otherwise inconsistent with the prescription.
(Amended (as amended by Proposition 47) by Stats. 2017, Ch. 269, Sec. 6. (SB 811) Effective January 1, 2018. Note: This section was amended on Nov. 4, 2014, by initiative Prop. 47.)
Remember, Ronald Dinan and Associates, is a firm of experienced and aggressive criminal drug lawyers, who can help in achieving the best outcome in your case. Many times criminal drug case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charges, diversion programs instead of criminal prosecution, probation, reduced fines with installment payments, alternatives to jail, etc.
To get immediate help with your criminal matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.
Santa Rosa - 707-571-5550
Ukiah - 707-462-5950