California HS 11364 makes it a crime to possess drug paraphernalia. Paraphernalia is any device used to administer or inject a controlled substance. It is a misdemeanor carrying a $1,000 fine, a six-month county jail sentence, and collateral consequences like a damaged reputation and challenges securing employment, housing, and educational opportunities. That is why you should seek legal representation.
At Los Angeles Criminal Attorney, we are well-acquainted with the California judicial system, giving you an advantage at trial. We can listen to you, collect and analyze evidence, explore all your defense options, and fight for your freedom and rights.
When Possession of Drug Paraphernalia is Unlawful
HS 11364, the Possession of Drug Paraphernalia, bans possessing a contrivance, instrument, paraphernalia, or opium pipe used for illegally smoking or injecting controlled substances.
However, there is an exception to HS 11364. It is lawful to possess syringes or hypodermic needles if:
- A person has them for personal use, and
- They obtained the paraphernalia from a source approved by California law to offer sterile needles or syringes without prescriptions. It can be a pharmacist, physician, or needle exchange program.
The exemption is tailored to prevent the transmission of bloodborne ailments like HIV among individuals who use injectable drugs like heroin.
Before convicting you of this crime, the prosecution should establish the following facts of the crime:
- You have control over the drug paraphernalia
- You were aware of the existence of the drug paraphernalia
- You were aware that it was paraphernalia
Under HS 11364, control can be either constructive or actual.
A person has actual or exclusive control over a substance when they have it on their person or in their hand. For instance, the police arrested them with an opium pipe in their handbag.
When it comes to constructive possession, you do not have to touch or hold the substance to possess it. However, you can be convicted of HS 11364 if you have control over the substance or are entitled to control it, either through another person or personally. For instance, you have constructive control over the paraphernalia you share with your friend.
Defining Drug Paraphernalia
The legal term “paraphernalia” means items used for unlawfully smoking, injecting, or otherwise taking narcotic drugs or controlled substances. It can be:
- Miniature cocaine spoon
- Rolling papers
- Roach clips
- Hypodermic needles
Please note that HS 11364 does not cover items used in the manufacture or sale of controlled substances, including:
- Mixing devices used to compound drugs, like spoons, blenders, and bowls
- Balances and scales for measuring drugs
- Balloons and capsules, among other containers for packaging and concealing drugs
It is because having/owing these items is punishable under other laws, like possessing drugs for sale (HS 11351) and selling or transporting controlled substances (HS 11352).
a) Household Items Can be Considered Paraphernalia
Per California's drug paraphernalia law, a defendant can be convicted even if the items are household items if they used them or planned to use them to inhale, consume, or inject controlled substances illegally. The intent can be indirect if:
- The household item is assembled in a manner typical to narcotics use, or
- There are controlled substance traces found therein.
Nevertheless, possession of a household object that you could use for taking controlled substances, without more, will likely not result in a drug paraphernalia charge.
Narcotic Drugs and Controlled Substances
The terms narcotic drugs or controlled substances define certain drugs and substances. Generally, it includes opiates, hallucinogens, depressants, and stimulants.
Controlled substances are classified into five schedules according to their potential for medical use, harm, and abuse.
- Schedule I — Substances with a high potential for abuse and without safely accepted medical use.
- Schedule II — Substances with a high potential for abuse which can result in severe physical or psychic dependence but have accepted medical use under strict restrictions.
- Schedule III — Substances with less potential for abuse than Schedule I or II substances. While the abuse can result in low or moderate psychological or physical dependence, they have accepted medical use.
- Schedule IV — Substance with an even lower potential for abuse and limited psychological or physical dependence that Schedule III substances. The drugs have accepted medical use.
- Schedule V — These are the least likely substances to be abused and provide legitimate medical purposes.
Common narcotics and controlled substances in these classes include PCP, cocaine, heroin, and methamphetamine.
Marijuana is excluded from California HS 11364. Marijuana laws regulate drug crimes relating to marijuana paraphernalia.
Individuals Exempt From HS 11364 Prosecution
Some of the individuals exempt from criminal prosecution per HS 11364 include:
- Law enforcers or any person under their supervision or immediate direction, and
- Dentists, doctors, podiatrists, pharmacists, veterinarians, manufacturers, retailers, and wholesalers are certified by the California State Board of Pharmacy to prescribe, transfer or sell hypodermic needles, syringes, and other substances designed to inject controlled substances into the human body.
Penalties, Consequences, and Sentencing
Violation of HS 11364 is a California misdemeanor. It is punishable by
- Up to $1,000 in fine
- A six-month county jail sentence.
Additionally, an accusation can lead to adverse professional consequences for individuals holding professional licenses. For instance, a teacher arrested for HS 11364 could face a compulsory leave of absence pending their charge resolution.
If your enterprise deals with drug paraphernalia and you are guilty of HS 11364, the business license can be revoked. Your conviction can function as a ground for the non-renewal of the license. Due to the detrimental effects of a conviction on a business, it is essential to engage an experienced defense attorney.
Additionally, a criminal record can impact the ability to:
- Be approved for an immigration visa, citizenship, or green card if you are not a United States citizen
- Secure employment when your conviction is in your background check
- Rent an apartment if a landlord conducts a background check
You Could Qualify for Drug Diversion
Some HS 11364 defendants qualify for alternative sentencing called drug diversion programs.
Typically, drug rehabilitation is offered in place of serving time to individuals accused of non-violent drug use and drug possession crimes like HS 11364. The alternative sentence is available under the following:
- Deferred entry of judgment program or drug diversion (PC 1000)
- Proposition 36
You can qualify for PC 1,000 if:
- Within five years before the alleged commission of the crime, you have not faced a conviction for any crime involving drugs other than HS11364
- The alleged offense did not involve threatened violence or violence
- You do not have a prior drug conviction
- There is no proof of a simultaneous violation associated with narcotics or restricted dangerous drugs not qualifying for drug diversion.
- You have not had parole or probation revoked.
- You have not been guilty of a California felony within five years.
If the judge lets you participate in a drug diversion program, you enter a no-contest or guilty plea to the criminal charges. Instead of sentencing you, the judge gives you time to complete the substance abuse program.
Some of the probation conditions you must comply with include:
- Submitting to drug testing
- Completing drug rehabilitation.
Once you complete your drug treatment and probation, the judge will dismiss the charges. Otherwise, the judge can order you to serve time.
You do not qualify for drug diversion participation if you are simultaneously found guilty of HS 11364 and
- Another misdemeanor that does not involve simple drug use or possession or
- A felony.
Your skilled Los Angeles drug defense attorney can assist you in enrolling in a drug diversion program.
Fighting HS 11364 Criminal Charges
While this criminal charge carries severe penalties, there are many legal defenses and strategies that you can use to fight the accusation. Every case is unique, so a legal defense that would be practical for another defendant might not work for you. Your experienced criminal defense attorney should review the evidence and facts of your case to determine the most effective legal options and defense to fight the charges.
Common legal strategies include arguing that:
Entrapment is the act of government agents or law enforcers encouraging or inducing a person to violate the law when the individual does not express the desire to act so.
You could use entrapment as your legal defense if the encouragement or commission of the crime originated with the law enforcer instead of you.
You Do Not Have Control Over the Drug Paraphernalia
You cannot be sentenced for this drug crime if you do not have control over the drug paraphernalia.
For instance, the police have a search warrant to search your home for proof of a theft crime. During the search, the law enforcers find an opium pipe in the bathroom. However, the paraphernalia belongs to your roommate, Sophia, and only Sophia uses it. Although the paraphernalia is in your home, you neither have its actual possession nor are entitled to control it. Consequently, you cannot be convicted of the HS 11364 charge.
The Substance Was Not a Paraphernalia
Just because a substance looks like something you could use to take or inject controlled substances does not always mean it is the case. It is probably a pipe you use to smoke tobacco. Or it is a tool for administering a prescription drug to your injured or sick pet.
Remember, the prosecution must establish that you possess drug paraphernalia before convicting you of the crime. Other items do not meet the criteria.
You Were Not Aware that the Item Was a Drug Paraphernalia
Even when the law enforcers find you with paraphernalia, if you were not aware that it was drug paraphernalia, you cannot be convicted of HS 11364.
Typically, this legal defense is effective for people without criminal records, mainly a drug history. Before determining whether you knew the substance was paraphernalia, the judge will consider your previous drug-related conviction, how you displayed the object for sale, expert testimony about its use, and your statements.
The Police Discovered the Drug Paraphernalia During an Unlawful Search and Seizure
Paraphernalia is often discovered during an unlawful search and seizure.
For instance, a police officer pulls you over for reckless driving. Without a justifiable reason, they ask you to exit the vehicle, so they conduct a search where they find an opium pipe under your seat and arrest you for a HS 11364 violation. Since the police discovered your paraphernalia during an unlawful search, your defense attorney should prevail on the motion to suppress evidence (PC 1538.5), leading to charge dismissal.
Discussed below are crimes charged alongside or in place of HS 11364.
California HS 11364.5 makes it illegal to operate an enterprise where paraphernalia is
- Sold, or
- Stored for use
with lawful objects apart from when it is in a space inaccessible to minor children who are unaccompanied by their parents.
If found guilty, you will not face penalties but lose your California business permit or license. Additionally, the state will seize and forfeit the drug paraphernalia.
HS 11365 makes it an offense to be present while another person takes a controlled substance and you aid and abet their drug use.
It is a misdemeanor punishable by a maximum of six months in county jail. It can be charged alongside HS 11364 if the police find you possessing paraphernalia that somebody else is using or about to use.
California HS 11364.7 bans you from transporting, furnishing, manufacturing, or possessing paraphernalia when you are aware or should be aware that you will use the drug paraphernalia concerning illegal drug sales or use.
The section also prohibits the following:
- Furnishing a minor with drug paraphernalia, or
- Possessing a hypodermic needle on a school grounds knowing or intending that minors will use the needle to inject controlled substances
Depending on your case circumstances, HS 11364.7 is a wobbler. If charged with a California misdemeanor, you will spend a year in jail and pay a fine of $1,000. A felony, on the other hand, carries up to $10,000 in fines and sixteen months, two (2) years, or three (3) years in state prison.
Your Rights When Dealing With the Police
If the police have knocked on your door and are questioning you, it is challenging to know your constitutional rights. Even though you have rights, the officers can imply that you do not have a choice but to comply with their order.
Below is an in-depth guide to your rights when talking to the police.
The Right to Remain Silent
You have probably seen on TV police officers slapping cuffs on a defendant and telling them, "You have a right to remain silent. Whatever you say will and can be used against you in court."
The 5th Amendment to the U.S. Constitution protects defendants from self-incrimination. Additionally, it triggers the practice of cops telling suspects that:
- Whatever the police can use their statement against you in court
- They are entitled to consult with an attorney
- An attorney can be present during the suspect's questioning
- The court should appoint a public defender free of charge if the defendant cannot afford a criminal defense lawyer.
Please note that it is not a requirement that the police read you your Miranda warning during your arrest. The police should only ensure you know your rights before interrogating you after the arrest.
If they choose not to ask you questions, they are not lawfully supposed to read you the Miranda rights. They can question you if you are not under arrest, but you do not need to answer them.
After the police read you the Miranda rights, they will ask whether you understand the rights. They will also ask you whether you wish to speak to them. It is known as a Miranda waiver. Some of the questions they ask include:
- Knowing you are entitled to be silent, will you speak with us?
- Do you understand all the rights read to you?
If you agree to talk to them, you waive the Miranda rights and invoke your entitlement to remain silent. And whatever you say can and will be used against you.
a) What Happens If the Police Violate Your Right
The following can be deemed a Miranda rights violation:
- The police interrogate you without reading you your Miranda Warning
- The officer did not allow you to have your defense lawyer present while questioning you
- The law enforcers coerced you into making a self-incriminating statement during your interrogation
Your lawyer should bring a motion to suppress the evidence in this case. However, a Miranda violation is not necessarily grounds for dismissing your charges. It only applies to the details that the law enforcers acquired involuntarily. If the only evidence against you is evidence obtained unlawfully, your case can be dismissed.
b) What to Do If a Police Officer Wants to Question You
If a law enforcer wants to question you, do not go alone. You should insist and remain firm that your attorney be present before speaking to the officer.
The cop is trained and skilled to use several strategies to get you to speak with them. Your lawyer can identify the tactics and assist you in staying clear of them. Additionally, they can guide you on how to handle the questions.
Other tips to adhere to include:
- Do not obstruct or lie about investigations.
- Avoid waiving your constitutional rights.
- Do not discuss your case on a jail telephone; the police could record your conversation
- If you are detained, do not discuss the case with inmates
- Remain calm
- Act respectfully and politely
Right Against Unreasonable Search and Seizure
The 4th Amendment to the U.S. Constitution provides you the right to be free from unreasonable searches and seizures. The law protects you from searches in your home, hotel room, cell phone, computer, tent, or vehicle. However, the law does not offer a reasonable expectation of privacy for the following property:
- Abandoned property
- Contents of a stolen car
However, the legitimate expectation of privacy in assets does not mean the law enforcer cannot seize or search the property. It means that they can only do so if:
- They have a search warrant, or
- Any of the above exceptions applies.
Most searches are constitutional because they are done with a valid search warrant. The judge authorizes a valid search warrant. It should also be based on probable cause and describe the area and property to be searched.
If you believe you are a victim of an illegal search or seizure, you are entitled to have the obtained evidence suppressed. It means the prosecution team will not use the evidence against you in the jury trial. Your skilled defense lawyer can challenge the evidence by filing a motion to suppress evidence (PC 1538.5) before your trial starts.
If the court grants the motion and the proof is fundamental to the prosecutor’s case against you, your criminal charges can be reduced or even dismissed altogether.
Right to Legal Representation
The 6th Amendment to the United States Constitution offers the assistance of counsel for the defendant in every criminal prosecution. It means you have the right to legal representation at all phases of the criminal process, from the arrest to your appeal after conviction. It also means that if you cannot afford a lawyer, the government should appoint a public defender to handle your case at no cost.
Since it is challenging to put a price on a defendant’s freedom, the role of a defense lawyer cannot be overlooked. While the duties of a lawyer vary depending on the case facts, the responsibilities of a defense attorney include the following:
- Advising you on your rights and ensuring they are not violated through police misconduct or in a court proceeding
- Advising you on what to expect at different stages of your criminal process
- Engaging in plea bargain negotiations with the prosecutor on your behalf
- Investigating evidence and facts against you, cross-examining prosecutor’s witnesses, and identifying gaps in the prosecutor’s case to develop valid legal defenses and build your case
Find a Knowledgeable Drug Defense Lawyer Near Me
If convicted of HS 11364, you are probably anxious, confused, and worried about your future. A conviction can adversely affect your future, career, reputation, finances, and life. Fortunately, a skilled defense attorney can aggressively protect your future. The attorneys at Los Angeles Criminal Attorney have many years of experience and are committed to treating all clients with the personalized attention and respect required to obtain the most favorable case outcome. We can also ensure that your constitutional rights are upheld throughout the criminal justice process and that you are protected from unjust charges and manipulative tactics.
Start the defense process by contacting us at 424-333-0943. We offer free initial consultations.