How To Defend Against Possession Of Drug Paraphernalia Charges In California

In this guide, I will explain how to defend possession of drug paraphernalia charges in California.

Let’s begin…

How Does the Prosecutor Prove This Charge?

If you are arrested for possessing an object that can be used to inject or consume illegal drugs, then you will likely be charged under Health & Safety Code section 11364¹.

If you are charged with possessing drug paraphernalia used to unlawfully consume a controlled substance, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code § 11364:

• You unlawfully possessed an object that can be used to unlawfully inject or consume a controlled substance.
• You knew of the object’s presence.
• You knew that the object could be used to unlawfully inject or consume a controlled substance².

What is Considered Knowledge

You were aware of the substance’s presence, and that it was a controlled substance.

Example:

You are arrested with an opium pipe that you knew was in your purse, that you mistakenly thought was a crack pipe. Both are illegal controlled substances under H&S § 11364, the mere fact that you knew that the substance was in your possession, and you knew that it was a controlled substance is enough.

What Is Drug Paraphernalia Under Section 11364?

Drug paraphernalia is anything such as a device, contraption, or instrument used for injecting or smoking illegal drugs

Example:

A crack pipe or syringes for heroin use would be illegal under this Section.

Drug Paraphernalia Is Not Absolutely Anything Relating To Any Illegal Drug

Example:

A scale or marijuana “bong” would not be covered under this Section, however may be a violation under a different section of the Health and Safety Code.

Example:

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. These items are specifically protected under this Section.

Actual vs. Constructive Possession

There are 2 kinds of possession under these laws:

Actual Possession

You have actual and/or exclusive control over the substance, you actually have it in your hand or on your person.

Example:       

You are arrested with an opium pipe in your pocket

Constructive Possession

You do not have to actually hold or touch the substance, to possess it. It is enough if you have control over it or the right to control it, either personally or through another person.

Example:

You and a friend are arrested with opium pipes in the front passenger compartment of the car. Two or more people may possess something at the same time, which will give rise to constructive possession.

Legal Defenses

Depending on the circumstances cases need to be evaluated and assesses the most effective legal defenses to assist in negotiating a possible charge reduction, or if applicable, dismissal of the charges. Below are possible legal defenses to a charge under Health & Safety Code §11364:

Drug Paraphernalia Was Authorized For Personal Use

If paraphernalia is found in your possession, and it was authorized for your own personal use³, then an attorney can argue to the prosecutor that, the fact that the item was authorized means the possession of it is not illegal.

Example:

Jane is arrested for possessing needles or syringes for her personal use. Jane obtained the needles or syringes from an authorized source, Dr. Diabetic, for her insulin injections. At the time of her arrest, Jane possessed 5 needles in a sealed case.  Jane would be found not guilty under Section 11364, because Jane did not unlawfully possess her hypodermic needles or syringes. Under Section 11364, it specifically provides protection if you possess the items for personal use, obtain it from an authorized source and possessed no more than 10 needles or syringes.

Doctor, Nurse, Pharmacist, Manufacturer Or Retailer Of These Items

If paraphernalia is found in your possession, and you are authorized to possess the item under your profession, as perhaps, a nurse, then an attorney, may be able to argue to the prosecutor that your possession of the item was not illegal.

Did Not Possess The Drug Paraphernalia

UnderHealth & Safety Code § 11364, Possession is Required. Therefore, if you did not actually possess, or even constructively possess the paraphernalia, then you have not committed a violation under Section 11364.

Did Not Know That The Drug Paraphernalia Was Present

UnderHealth & Safety Code § 11364, you are required to have knowledge of two things in order to be convicted. First, that you knew of the presence of the drug paraphernalia. Second, that you knew of the item’s nature or character as drug paraphernalia. Therefore, knowledge is a critical part of these charges.

Entrapment

Under Health & Safety Code § 11364: The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. 

Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”

Insufficient Evidence

Under Health & Safety Code § 11364: A criminal defense attorney can show the prosecutor that they do not have enough evidence to convict you under Section 11364.

This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.

Penalties

Possessing drug paraphernalia is a misdemeanor under California law. The penalties are:

Penalty	Misdemeanor
Fine	Up to $10,000
Probation	0-3 years summary probation
County Jail	Up to 6 months

Information On The Court Process & Related Charges

The following links have information on the criminal court process in a misdemeanor:

• Being Released On Your Recognizance After An Arrest
• Arrest Warrants
• Step 1 In A Criminal Case – The Arraignment
• Pitchess Motion
• The Plea Bargain Process Between Prosecution & Defense Attorney
• Criminal Trials – A Step By Step Overview

The following are often charged in conjunction with a drug paraphernalia charge.

• Health & Safety Code 11350- Possession of a Controlled Substance 
• Health & Safety Code 11351- Possession and/or Purchase of a Controlled Substance for Sale
• Health & Safety Code 11352- Sale or Transportation of Controlled Substance
• Health & Safety Code 11358- Marijuana Cultivation
• Health & Safety Code 11359- Possession of Marijuana for sale
• Health & Safety Code 11360- Transport, distribute or import Marijuana
• Health & Safety Code 11375(b)- Possession of a Designated Substance for Sale
• Health & Safety Code 11377- Possession of Methamphetamine

1. Health & Safety Code 11364(a) 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. (b) 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. [↩]
2. California Jury Instructions, Criminal (CALJIC 16.040 [↩]
3. Health & Safety Code 11364(c) 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. [↩]