Possession of Drug Paraphernalia

Drug paraphernalia is any object or item that can be used to facilitate the ingestion of an illegal drug. Possession or control of drug paraphernalia could result in an arrest and charge under California Health and Safety Code Section 11364. Considering that simple possession of drugs is a minor infraction in California, many people would think that possession of drug paraphernalia is also a minor offense.

If you face a conviction for violating HSC 11364, you could face a harsher sentence than a defendant cited for other controlled substances. The consequences of drug paraphernalia possession go beyond the jail time and fines you have to pay. Having a conviction in your criminal record could significantly impact your professional and personal life. Therefore, seeking legal guidance is crucial if you face an arrest and charges under this statute.

At Darwish Law, we are dedicated to investigating the details of your case and building a solid defense to help you fight the charges. If you face charges for possession of drug paraphernalia in Santa Ana, CA, you will need legal expertise.

Overview of Possession of Drug Paraphernalia in California

California Health and Safety Code 11364 prohibits possession of any object used for smoking, injecting, or consuming a controlled substance. Before a prosecutor can obtain a conviction against you under this statute, they must prove the following elements beyond a reasonable doubt:

     1. You Exercised Control or Possession of Drug Paraphernalia

The issue of possession of drug paraphernalia is not always straightforward. For California Health and Safety Code Section 11364, possession of paraphernalia could take two forms:

  • Constructive possession. Often constructive possession is a broader idea of having the illegal item within your control area even when it is not in your physical possession. This could include having the paraphernalia in your home or business premises or having another person keep it for you. The main point in constructive possession is that you control it even when the item is not physically with you.
  • Actual possession. Actual possessions may people think of when they learn of the drug paraphernalia charges. You are considered in actual possession of the illegal item if it was physically within your reach.

Determining possession in drug paraphernalia solely lies on the prosecution, and both actual ad constructive possession can result in a conviction.

     2.You knew of the Drug Paraphernalia’s Presence.

Before you have a conviction under this statute, the prosecutor must prove that you knew of the object’s presence in question. The term paraphernalia addresses a variety of items that are used or could be used to smoke, inject or consume a controlled substance. Common items viewed as paraphernalia include hypodermic needles and cocaine spoons, roach clips, syringes, and rolling papers.

However, hypodermic syringes and needles are excluded from the list if acquired from a physician, pharmacist, or other authorized personnel for personal use. Additionally, the following items used for the sale or manufacture of drugs may not satisfy the definition of paraphernalia:

  • Balances or scales used for measuring drugs
  • Bowles blenders and spoons for mixing controlled substances
  • Containers used for concealing the drugs

     3. You knew that the object in your Possession was Drug Paraphernalia

You could not face a conviction under HSC 11364 if you did not know that your item was paraphernalia. Any item can be paraphernalia if it is used to facilitate consumption of controlled drugs like:

  • Cocaine
  • Heroine
  • Opiates
  • PCP
  • Methamphetamine

Some individuals are exempt from California drug paraphernalia laws, including:

  • Doctors, pharmacists, veterinarians, or manufacturers of these items
  • Law enforcement officers or other individuals working under the direct supervision

Penalties for Possession of Drug Paraphernalia under Health and Safety Code 11364

Possession of drug paraphernalia is a misdemeanor. If you face a conviction for the offense, the court will determine your sentence depending on the circumstances of your case and your drug-related criminal history. Some of the legal penalties that accompany a conviction for the crime include:

  • A maximum jail sentence of one u=year to be served in county jail
  • A fine not exceeding $1,000

Probation for Drug Paraphernalia

Sometimes, the court could sentence you to probation after a conviction for violating California Health and Safety Code 11364. Often, probation is an alternative to jail time. If you are a low-risk defendant, the court may grant you probation. This means that you will spend part of your sentence or the entire sentence out of jail. Although possession of drug paraphernalia is a misdemeanor, California courts often impose formal probation.

Formal probation lasts between three to five years, and the judge imposes the following conditions that you must follow while on probation:

  1. Avoid violating other laws. While on formal probation, involvement in criminal activity other than traffic infractions is considered a violation of probation.
  2. Regular check-ins with a probation officer. The court will assign you a probation officer responsible for monitoring your progress during your sentencing. While on probation, you must report to the officer and inform them if you want to travel out of the jurisdiction. In addition, the probation officer reports any instance of probation violation.
  3. Perform community service. If you are sentenced to probation as an alternative to jail, the court will require that you do some community service.
  4. Mandatory drug counseling. Unless you enter a drug diversion program, individuals on formal probation for possession of drug paraphernalia must attend drug counseling.
  5. Random drug testing. Criminal defendants serving probation for drug paraphernalia may be subject to random drug and alcohol testing.
  6. Payment of fines. As a requirement of formal probation, you must pay the court fines imposed during your sentence.

Violation of one or multiple probation teens will result in a revocation of the probation and reinstatement of the prison sentence. Since not every defendant is eligible for probation, your attorney must negotiate with the prosecutor to ensure that this type of sentence is what’s best for you.

Drug Diversion Program 

Drug diversion is a program that allows first-time low-risk drug offenders to escape jail and instead enter a probation program. Possession of drug paraphernalia is one of the crimes eligible for drug diversion under California PC 1000. If the court allows you to enter a diversion program, you must plead guilty or no contest to the drug paraphernalia charges. 

However, you will be required to complete a drug rehabilitation program instead of sentencing. When you complete the rehabilitation program and complete all the requirements, your HSC 11364 will be dismissed. Before you are accepted into the drug diversion program, you must meet the following eligibility criteria:

  • You do not have drug convictions in your record. Often, the drug diversion program aims to keep first-time offenders out of jail with the hope that the rehabilitation program can transform their behavior.
  • Your charges for possession of paraphernalia did not involve a threat of violence or actual violence on another person.
  • Your case is of simple possession and does not involve other illegal substance possession or use. Individuals arrested and charged with possession of paraphernalia and other drug crimes cannot be eligible for the diversion program.
  • You do not have a history of parole or probation revocation.
  • You have not faced a felony conviction in the last five years.
  • You haven’t been in a diversion program within the last five years.

One of the most significant benefits of undergoing a diversion program instead of facing jail time is that you have an opportunity to receive drug treatment. Additionally, your charges are set aside after completing the diversion. Therefore, you will not have to deal with the consequences of having a criminal record.

Common Defenses against Health and Safety Code 11364 Charges in California

Criminal charges for possession of drug paraphernalia are serious. However, not all cases will end in a conviction. With the guidance of your attorney, you can employ the following defenses to your case:

  • Lack of Control or possession. If you did not have actual or constructive possession of control of the paraphernalia, you could not be found guilty of this crime.
  • Lack of knowledge that the object was paraphernalia. You could not be guilty of violating HSC 11364 unless you knew firsthand that the object in your possession was used to ingest illegal drugs. Often, this defense will work best if you are a first-time offender or do not have another drug-related conviction in your record.
  • You did not know that the paraphernalia was in your possession. One of the elements that the prosecution must prove before convicting you for possession of drug paraphernalia is that you were aware that the illegal object was in your control. You can avoid a conviction under this statute by proving your lack of knowledge on the possession.
  • The object was not paraphernalia. Just because you have an item used for drug consumption does not mean it was intended for that purpose. Therefore, you can argue that the item the officers found was not paraphernalia.
  • Police misconduct. California law seeks to protect all individuals from harassment and unlawful searches. Sometimes, drug paraphernalia was found in your home, business, or vehicle during an illegal search or other violation of your constitutional rights. In this case, you can petition the court to remove it from the evidence in your case. Since this could be the primary basis of your drug paraphernalia case, eliminating the evidence could result in a case dismissal.
  • Legal authorization to possess the item. Some individuals are exempt from drug paraphernalia charges. If you are a medical practitioner or obtain syringes from an authorized source to administer medication, you cannot be convicted for drug paraphernalia.

Possession of Drug Paraphernalia FAQ

Although Violation of California HS 11364 does not seem as severe as other drug charges, a conviction for the offense may attract life-changing consequences. The following are some frequently asked questions on possession of drug paraphernalia:

     1. Can a household item be considered drug paraphernalia during an arrest and conviction?

Yes. Under the drug paraphernalia laws of California, you can face an arrest and conviction for this crime even when the item used was a simple household object. You will be charged for the offense as long as you or another person uses the item in question to inhale, consume, or inject a controlled substance. The prosecutor proves that the object was intended for drug use if traces of a controlled substance are found on it or the objects are arranged to suggest drug use.

     2. Can I be arrested for possession if I did not know that the item was drug paraphernalia?

Yes. When seeking a conviction for drug paraphernalia possession, the prosecutor does not need to prove your knowledge of the nature of the item. However, it must be clear that you knew that the item was intended for use in inhaling, consuming, or injecting the drug and its presence in your control area. Before you face a conviction, the court will determine whether they are satisfied with the prosecutor’s explanation.

     3. Can I be charged with possession of drug paraphernalia for having a hypodermic needle in my home?

While it is a crime to possess a hypodermic needle for injecting a controlled substance, having the syringes in your home will not always result in arrest and criminal charges. If you have not more than ten needles obtained from an authorized source for use in personal medical does not constitute possession of drug paraphernalia. Before establishing your guilt under this statute, the prosecution must prove that you intended to use the syringe for injecting an illegal substance.

     4. Will a conviction for possession of drug paraphernalia affect my life as much as drug possession?

Yes. A conviction for violating Health and Safety Code Section 11364 will remain in your record. In California, adult criminal records are public records. The conviction can be viewed by potential employers and other individuals who do a background check on you. This could significantly impact your ability to secure a job.

Additionally, the court could revoke your business permit if drug paraphernalia was discovered in your business premises. Since the consequences of possession of drug paraphernalia can be detrimental to your personal and professional life, it is vital to contact your attorney as soon as possible.

     5. What should I do if I am arrested for possession of drug paraphernalia in California?

Not all arrests related to possession of drug paraphernalia result in a conviction. Some arrests are based on suspicions, false tips, or even illegal search and seizure. Therefore, facing an arrest does not mean that you will end up in jail. After the arrest, the first thing you need to do is utilize your first phone call to contact your criminal defense attorney. Your lawyer will help you understand the nature of the arrest and guide you on how to conduct yourself while undergoing investigations.

Offenses Related to Possession of Drug Paraphernalia

There are times when possession of drug paraphernalia stands on its own. However, in most cases, it is accompanied by other related charges that could be charged together with the crime, including:

Business Possession of Drug Paraphernalia

Under HSC 11364.5, it is illegal to operate a business where drug paraphernalia is displayed, sold, or stored. In addition to jail time, a conviction under this statute could revoke your business permit.

Manufacture and Transport of Drug Paraphernalia

It is a crime to manufacture, transport, or furnish drug paraphernalia to another person. Manufacture of transport of drug paraphernalia is addressed under Health and Safety Code 11364.7, and it applies when you know that the object was intended for drug use. Manufacture and transport of drug paraphernalia is a misdemeanor punishable by one year in jail and a fine of up to $1,000.

However, if you furnished the items for using illegal drugs to a minor, you could face felony charges. In this case, a felony conviction, s punishable by a three-year prison sentence and $10,000 in fines.

California Health and Safety Code 11365

You can face an arrest and charges for violating HSC 11365 if you are present when a person uses a controlled substance or aid them to do so. Helping another person use illegal drugs is a misdemeanor that carries a six-month jail sentence. If you are found in possession of drug paraphernalia being used by another person, you could be charged with both HSC 11364 and 11365.

Find a Criminal Defense Attorney Near Me 

As much as possessing an illegal substance is a criminal offense in California, you can face an arrest and charges for possession of any item designed to be used for controlled drugs. Drug paraphernalia can range from hypodermic needles used to inject the drugs to cocaine spoons. The penalties for possession of drug paraphernalia in California are harsh and could significantly affect your personal and professional life. 

It is easy to be falsely accused of possession of drug paraphernalia since most of these items often resemble our usual household utensils. Therefore, if you or your loved one faces charges for this offense, you must contact a skilled criminal defense lawyer. At Darwish Law, we will carefully review your case to build a strong defense and ensure the best possible outcome for you. We serve clients requiring legal guidance or representation to fight drug paraphernalia charges in Santa Ana, CA. Contact us today at 714-887-4810 and allow us to guide you through the challenging legal process.