Definition and Aspects of Possession of Drug Paraphernalia:
While possession or possession for sale of a controlled substance is a serious offense, it is also against California law to possess items used to smoke or inject illegal drugs. Under California Health and Safety Code Section 11364 (HSC 11364), the possession of any drug-related paraphernalia is considered a misdemeanor offense that can result in fines and even jail time.
In order to be convicted of Possession of Drug Paraphernalia (HSC 11364), the Prosecution must prove the following:
- The Defendant possessed an object used for unlawfully smoking or injecting an illegal substance
- The Defendant was aware of the object’s presence
- Defendant knew the object was used for unlawfully smoking or injecting an illegal substance
There are certain exceptions where someone might need to possess objects constituting paraphernalia and not commit a crime under California Health & Safety Code Section 11364. Below are the rules the Defendant needs to follow as to prove that he/she is legally authorized to possess needles or syringes:
- Needles or Syringes in possession of Defendant are for personal use
- Defendant obtained the items from an authorized source
- Defendant possessed no more than ten needles or syringes
Possession can either be actual or constructive. Actual possession refers to an object on the person of the Defendant, while constructive possession could mean the item is not currently with the Defendant but in a place they own/frequent—for example, their apartment, car, etc.
Drug paraphernalia can include:
- Opium pipes
- Methamphetamine pipes
- Cocaine spoons
- Metal, ceramic, or glass pipes
- Glass vials
Possession of a device used to smoke marijuana is not a crime.
California Health and Safety Code 11364 (HSC 11364): Possession of Drug Paraphernalia excludes the following items commonly found with other drug-related objects:
- Other mixing devices
Criminal Offenses Related to Possession of Drug Paraphernalia:
Similar or related criminal offenses to (HSC 11364) include:
- California Health & Safety Code Section 11350 (HSC 11350) – Possession of a Controlled Substance
- California Health & Safety Code Section 11550 (HSC 11550) – Under the Influence of Drugs
Example of Possession of Drug Paraphernalia:
A man suspected of the sale of drugs gets a search warrant against him. While the police do not find any narcotics or other controlled substances, they do discover an unreasonable number of hypodermic needles. Under California Health & Safety Code Section 11364 (HSC 11364), the man could be charged with the possession of drug paraphernalia.
In another example, a man is pulled over while driving with a suspicion of DUI. During the search of his vehicle, a pipe used for the smoking of marijuana turns up. The man would not be guilty under California Health & Safety Code Section 11364, as marijuana paraphernalia is specifically excluded from the Prosecution of this statute.
Defenses to Possession of Drug Paraphernalia:
One of the commonly used defenses for possession of paraphernalia questions the object itself found in possession of the Defendant. If the item discovered is not considered paraphernalia, the case should be dismissed. This includes the possession of pipes and items used for the smoking of tobacco or marijuana, but not another controlled substance.
Another defense for (HSC 11364) questions the legality of the search or seizure that resulted in the paraphernalia being discovered. If Defendant can prove the search or seizure was illegal and not supported by a probable cause, the case would have to be dismissed by the Judge.
Consequences and Penalty for Possession of Drug Paraphernalia:
Under California Health & Safety Code Section 11364 (HSC 11364), the possession of drug paraphernalia is considered a misdemeanor in California that can result in fines up to $1,000 and up to six months in jail. Moreover, a Judge can enforce additional probation time. Lastly, if any usable amount of controlled substance is discovered with the paraphernalia, the Defendant could be charged with possession of an illegal substance (HSC 11350). It is imperative that if you are charged with California Health & Safety Code Section 11364 (HSC 11364) Possession of a Paraphernalia, you contact an experienced criminal defense lawyer as soon as possible.
Contact Action Lavitch from Action Defense Lawyers for a FREE consultation regarding your California Health & Safety Code Section 11364 (HSC 11364) charge. Our criminal defense attorneys are available 24/7 at (747) DEFEND U or (747) 333-3638. Having an above 90% success rate for clients, Action Defense Lawyers is the go-to for those charged with California Health and Safety Code Section 11364: Possession of a Paraphernalia (HSC 11364). With a proven track record and speaking both English and Spanish, Action Lavitch and the team from Action Defense Lawyers provide skilled legal representation and professional advice. Book a free consultation today.