The war on drugs in the US is serious. In 2018, there were 1,429,299 arrests for possession of drug paraphernalia. While the federal government criminalizes the possession of drug paraphernalia, the states provide distinct statutory regulations.
Paraphernalia could be items like plastic bags, boxes you use as illegal drug storage, rolling papers, or glass pipes you use to ingest drugs. Generally, possession of drug paraphernalia in California is unlawful if it is planned to be used in consuming or using an illegal drug.
To fight your drug paraphernalia possession charges, hiring a lawyer from the Orange County Criminal Defense Attorney Law Firm is a wise decision. We can evaluate your case and help you or your loved one have the case dismissed or find proof for the diversion program. Regardless of your criminal history, contact our criminal defense attorney today for a consultation.
Legal Definition of Possession of Drug Paraphernalia
Drug crimes involve not only the possession, usage, and sale of illegal or controlled substances but also ownership of things used to smoke, inject, or ingest those substances.
If you are arrested for possession of drug paraphernalia, you are charged under California Health and Safety Code 11364 HS. According to the code, it is prohibited to have an apparatus, opium pipe, or equipment used in the illegal smoking or injection of controlled substances.
The Health and Safety Code 11054 HS considers certain substances as controlled substances. They include opiates, opium derivatives, hallucinogenic substances, depressants, coca leaves, cocaine, ecgonine, and many more.
However, the possession of paraphernalia law does not prohibit possession of hypodermic syringes and needles only if they are packed in containers for safe disposal. The code needs the containerization to comply with federal and state regulations for sharp waste disposal.
The Health and Safety Code 11364 HS provides that you are not prohibited from possessing hypodermic syringes if given by a pharmacist or a physician who is allowed by the authority to offer sterile needles without prior prescription until 2021.
What Constitutes Drug Paraphernalia?
Every state has its description of what constitutes drug paraphernalia. Below are the most common drug paraphernalia, according to the National Drug Intelligence Center:
- Pipes - These refer to any pipe you can use to smoke controlled substances. These include opium pipes, crack cocaine pipes or hashish pipes. The tubes can be made from ceramic, stone, metal, glass, wood, plastic, or acrylic.
- Water bongs - These items are initially manufactured for specific purposes – to store water. However, if you use water bongs for the ingestion of controlled substances, the bongs qualify to be drug paraphernalia. If found with illicit substances in your water bong, you violate the drug paraphernalia possession law.
- Rolling papers - Rolling paper is yet another drug paraphernalia that has both lawful and illegal uses. If your rolling papers are solely used for smoking tobacco, you do not violate any law. But, if following a legal search, you are found with illegal substances, you are charged with possession of drug paraphernalia, among other drug crimes
- Plastic baggies - If you are always on the go, you find small plastic baggies handy. You can place your vitamins in the baggies and put them safely in your suitcase. But they could be used as drug paraphernalia if used to stash cocaine of heroin. If upon the search you are found with illicit substances you are charged with drug possession and upon further search plastics are found, you violate the Health and Safety Code 11364 HS California rule.
- A weighing scale - You may have a typical kitchen scale to weigh your ingredients, and that’s a legitimate use. But your scale becomes drug paraphernalia if controlled substances are found in your home. The police can figure out if you use the scale in your home to measure controlled substances like heroin and decide to arrest you for drug paraphernalia possession.
- Other possible drug paraphernalia includes aluminum foil, mirrors, razor blades, glass panels, ceramic, spoons, or syringes, and needles.
Determining What Constitutes Drug Paraphernalia
It takes a lot to decide if an item, tool, or apparatus make up drug paraphernalia. Law enforcers and prosecutors consider various relevant and logical factors before ruling that an item is used as drug paraphernalia. These factors include:
- Manufacturer’s written, printed, or oral descriptions that come with the object concerning its primary purpose
- Instructions, menus, or descriptive material that come with the item to illustrate how it is assembled or used
- Information published in print or visual forms through local and national advertisements on the use of an item
- The style of marketing or display used by the object’s seller or how the item is displayed for sale
- Whether the one in possession or with the ability to control the object is a genuine supplier in society. For example, an authorized dealer or vendor of tobacco rolling papers and products
- Substantial proof of the volume of sales of the objects by a business enterprise
- Evidence linking to the lawful uses of the object in the society
- Testimonials from experts of the object revealing that the object’s purpose is legitimate and not as drug paraphernalia
Persons Exempted from Prosecution
The California Health and Safety Code 11367 HS exempts specific people from the trial. These people are:
- Any person including law enforcers operating under orders
- Any person legalized by the California State Board of Pharmacy to use, sell, or prescribe sterile needles and hypodermic syringes used for the injection of drugs in the body. These persons are dentists, veterinarians, manufacturers, and medical equipment suppliers.
How Does the Prosecutor Prove this Charge?
Like any other crime, when charged with possession of drug paraphernalia, the prosecution must prove beyond a reasonable doubt that you are guilty. Elements that need proof are:
- The accused knew that the items in possession at the time of arrest, are considered drug paraphernalia by law
- The offender could control or be using the drug paraphernalia at the time of the arrest.
- The defendant knew there was the presence of drug paraphernalia at the time of the arrest
Constructive vs. Actual Possession of Drug Paraphernalia
It’s confusing for the state to prove that you own an illegal item. For that reason, possession, under the law, has two forms:
A broader form of possession suggests that you don’t have to hold the drug paraphernalia in real-time to possess it. If you can control the apparatus, then you violate the Health and Safety Code 11054. The concept of constructive possession is that you can have the capacity to possess the item physically. Thus, it’s still “yours.”
The investigators depend on joining the dots to confirm that you can use the paraphernalia, even if it’s not on you. The prosecution must provide proof that you have the ability to possess the equipment.
This form of possession includes having drug paraphernalia in your vehicle or house, even if at the time of arrest, you had no contact with the apparatus. If you are in the company of your friend and they have drug paraphernalia, you also can get charged because you can have the item if you so wish.
Actual possession means that you are in physical possession of the instrument. If you have cigarette folding papers in your pocket and traces of cocaine are found, then you violate Health and Safety Code 11054.
Penalties for Drug Paraphernalia Possession in California
Under California law, the violation of drug paraphernalia law is categorized as a misdemeanor. If convicted for violating the Health & Safety Code 11364 HS, you serve a jail-time of six months and fines not exceeding $1,000. The juror can add more punishment like suspending your professional license. If you are a lawyer, a teacher, a realtor, or a driver, you risk losing your job. The possible punishment if convicted include:
- A maximum jail-time of one year and fines not exceeding $1,000 if convicted of the manufacture or delivery of drug paraphernalia. This crime is considered a misdemeanor
- Jail-time in county prison for not more than a year and fines not over $1,000 if convicted for showing drug paraphernalia to minors of age 18 years and below. The violation of the law is considered a misdemeanor crime
- If arrested for the possession of drug paraphernalia within a learning institution, you commit a misdemeanor crime. Punishment for this violation is jail-time not exceeding a year and a fine not exceeding $1,000
When imposing penalties to someone convicted for violating the Health and Safety Code 11364 HS, the juror has the following alternatives:
- The defendant can serve a maximum of one year in the county jail or can face a fine not exceeding $1,000
- The court can sentence the defendant up to a year in county jail or place them on probation
- The juror can put the defendant on probation without sentencing them to prison. But the defendant had to serve a community service program and a mandatory drug guidance and counseling school
- The court can order the defendant to attend a drug diversion program and dismiss the charges after successful completion
- The court can place you on probation and assign a probation officer for a specific time-frame
Drug Diversion as an Alternative When Convicted of Possession of Drug Paraphernalia
Instead of facing jail-time for violation of Health and Safety Code 11364 HS, you can work with a criminal defense attorney to have your charges lowered to drug diversion.
Drug diversion is offered as a substitute for jail-time if your possession of drug paraphernalia crime was non-violent. The juror offers this alternative under Penal Code 1000 PC (California’s drug diversion program) or California Proposition 36.
When you are placed in drug rehabilitation, you enter a nolo contendere plea to your criminal charges. Here, you don’t plead guilty or not guilty, but you accept the penalty. The plea of nolo contendere is different from a plea of guilty because the court cannot use the nolo contendere plea against you.
The court sentences you to drug diversion for a specific time-frame, and you should undertake drug tests too. Your case is dismissed upon completion of the rehabilitation program. If you fail to complete your drug diversion sentence, the jury has the right to sentence you to prison.
But if you are charged with violating the drug paraphernalia possession, a misdemeanor crime that is not related to drug crimes, or a felony crime, the court disqualifies you from having a drug diversion substitute.
Under Penal Code 1000 PC you qualify for a drug rehabilitation substitute if:
- There are no prior criminal records of you showing drug crime violations
- Your Health and Safety Code 11364 HS violation does not link to any form of violence or threats of violence
- Your drug possession paraphernalia charge doesn’t include violations of narcotics as these are not eligible for rehabilitation programs
- You haven’t had parole repealed following further commission or repetition of crimes
- You haven’t been sentenced to a drug rehabilitation program in the last five years
- You have no records of felony criminal convictions in the previous five years
Possible Defenses Against Possession of Drug Paraphernalia Charges
With the help of a reputable criminal defense attorney, you can have charges against you reduced or dropped. Your attorney evaluates your case to determine effective options for your defense. Possible legal defenses to drug paraphernalia possession charges are:
- You had no Control Over the Drug Paraphernalia
The jury convicts only if there is evidence that you had control over the paraphernalia. The courts can only convict you if you had actual or constructive possession of the drug paraphernalia per Health & Safety Code § 11364.
If the police conduct a legal search at your home following another kind of crime and find suspicious ceramic, but it belongs to your friend, and you don’t use it, you get charged with drug paraphernalia possession.
- The Apparatus was not Paraphernalia
Often, things are not what they seem. An object that resembles drug paraphernalia doesn’t equate to paraphernalia. What if you use the apparatus per the prescription of a veterinarian to inject medicine to your pet? What if you use your pipe to only smoke tobacco?
Before you are convicted for possession of drug paraphernalia, the jury must confirm that you possess drug paraphernalia during your arrest. No other apparatus satisfies this criterion.
- You Weren’t Aware that the Item was Paraphernalia
Under California's drug paraphernalia possession law, you are innocent if the prosecutor cannot prove that you knew the drug paraphernalia in your possession was indeed paraphernalia.
But this type of criminal defense works well if you have zero criminal drug history. To find out if you are aware that the apparatus is drug paraphernalia, the prosecutor considers various things. These include your criminal history, your confessions, and statements about what you use the object for, expert testimony about the paraphernalia’s use, and how the sellers marketed the object’s purpose.
- You Weren’t Aware of the Object’s Presence
The Health & Safety Code § 11364 dictates that it is illegal to possess drug paraphernalia, whether constructively or actively. Firstly, the prosecutor has to receive proof of your knowledge of the presence of the object. Secondly, the prosecutor has to prove that you knew the object was drug paraphernalia.
There are situations where, when arrested for possession of drug paraphernalia, you cannot get convicted. What if someone placed a cocaine spoon in your backpack to avoid being caught themselves?
Imagine that you lend a friend your pants and left drug paraphernalia like plastic bags in the pocket. Another scenario is where your drug-addict friends left rolling papers in your apartment, and police found the items during a legal search.
- Discovery of Drug Paraphernalia After an Unlawful Search Was Conducted
Should police raid your house without a warrant and find drug paraphernalia, your attorney can help to have the charges dropped. Your criminal defense should have the capacity to initiate suppression of evidence per Penal Code 1538.5.
In California, defendants can ask the juror to dismiss evidence obtained following an illegal seizure. A 1538.5 or suppression motion can be part of the preliminary hearing or in a separate pretrial hearing.
With a reputable criminal defense lawyer, the prosecution is banned from bringing the evidence at trial. Eventually, the case is dismissed or the penalties are lowered.
Circumstances that lead to the suppression of evidence under the Penal Code 1538.5 include:
- If the police searched without a warrant
- If the police did search with a permit:
- The search warrant was defective
- There was no probable cause during arrest
- The search was conducted and violated the law
- The criminal evidence presented in the courtroom does not reflect what the warrant detailed
- Object Was Allowed for Personal Use
Under Health & Safety Code 11364 (c), the California law allows individuals to own drug paraphernalia like hypodermic needles in acquired from a licensed source until 2021. But you should not possess over ten syringes.
The California State Board of Pharmacy authorizes you to have up to ten sterile needles. If you are arrested for having six needles, then your criminal defense lawyer can argue in court that you are wrongfully charged.
The law under Health & Safety Code section 11364, states that the court cannot convict you if the police or government agents lured you into committing a crime.
Your attornment can argue your case on the grounds of entrapment – the commission of your crime was encouraged by law enforcers and not you, the defendant.
- Insubstantial Evidence
A criminal conviction is possible if certain elements are met. If these elements are not present in court by the prosecution, the case is dismissed following insufficient evidence.
You need a competent lawyer for your criminal defense to notice when insubstantial evidence is present before the jury.
- You are a Manufacturer, Doctor, Pharmacist, or Retailer of the Paraphernalia
Doctors, pharmacists, and nurses alike are exempt from the possession of drug paraphernalia conviction under the California Health and Safety Code 11367 HS (immunity from prosecution). Manufacturers and retailers also licensed to deal with drug paraphernalia enjoy immunity from prosecution statute.
Health & Safety Code Section 11364 HS Related Charges in California
California's possession of drug paraphernalia is linked to other drug-related crimes. These include:
Health and Safety Code 11364.5 HS, Uniform Controlled Substances
This Californian code criminalizes setting up a business premise close to drug paraphernalia stores, displays. If you are selling legitimate objects that are also used by minors (below the age of18), the drug paraphernalia must be stored in a separate room.
If you violate this law, you are not only charged with a criminal offense, but also, your business license in California is withdrawn. Also, the state will confiscate all drug paraphernalia in your shop and possession.
Health and Safety Code 11364.7 HS, Uniform Controlled Substances
Health and Safety Code 11364.7 HS is another drug paraphernalia code in California closely related to Health & Safety Code Section 11364. This statute bans anybody from owning, supplying, transporting, or producing drug paraphernalia if the intended use is illegitimate.
You are charged under this law if:
- You show or try selling drug paraphernalia to persons under 18 years
- You possess sterile needles and syringes in a learning institution and aware that minors can use needles to inject illicit substances in their bodies
The seriousness of your criminal charges depends on the precise crime committed. Violating Health and Safety Code 11364.7 HS carries more severe penalties than breaking possession of drug paraphernalia law. Here, criminal charges are:
- A misdemeanor crime, which upon conviction, you spend not more than a year in county jail and fines not exceeding $1,000
- A felony crime, which upon conviction, you get sentenced to a jail-time of two to three years in the California state prison and a fine, not over $10,000 fine
Find a Criminal Defense Attorney Law Firm Near Me
If you are charged with drug paraphernalia possession in California, you should contact our Orange County Criminal Defense Attorney Law Firm. We have competent criminal defense attorneys who have many years of experience with prosecutorial processes. We help fight drug crime cases like yours and develop the most effective defenses. We are reachable around-the-clock via phone at 714-740-7848.