If you are a drug user, you may be worried about the punishment for possession of drugs. In the event you are found in possession of a device or tool used to inject or smoke a controlled substance unlawfully, the penalties are sometimes even stiffer. Possession of drug paraphernalia is considered among the drug crimes in California. Even after an arrest for this crime, protecting your rights is essential. At the Los Angeles Criminal Attorney, we understand that your future is at stake when facing these charges. We will explain the legal definition of possession of drug paraphernalia, how the prosecution can find you guilty of the crime, and the possible legal defenses. Also, we will further discuss the penalties and offenses related to this type of drug crime.

Legal Definition of Possession of Drug Paraphernalia

As per California HSC 11364, it is a crime to possess any tool or instrument that is used to inject or smoke a controlled substance illegally. Items used in growing, manufacturing, weighing, and packaging illegal substances are also considered paraphernalia. In some instances, possession of hypodermic needles and syringes is not a crime. The move is intended to reduce cases of sharing needles and encourage the use of clean needles to prevent the spread of HIV and other illnesses. Up to the year 2021, it will not be a criminal offense to possess needles and syringes if they are meant for personal use only and if they have been acquired from a physician or other legal sources.

The controlled substances mentioned in this law include PCP, heroin, methamphetamine, and cocaine.

Possession of devices or instruments for injecting illegal drugs can be a constructive or actual possession. Constructive means that the paraphernalia doesn't need to be on your person or be under your control, even if it is found in your car or room. Also, if the object doesn't belong to you, you might still be arrested and charged for this crime. Active possession, on the other hand, means you are in physical contact of the item, or it’s under your control. If paraphernalia is found in your backpack or pocket, then you are in actual possession.

The drug paraphernalia included in this Health and Safety Code include:

  • Methamphetamine pipes
  • Glass, metal and ceramic pipes
  • Lighters
  • Cocaine spoons
  • Opium pipes

HSC 11364 also excludes specific items used in the production and distribution of controlled substances. These items include scale, bowls, mixing tools, baggies, and blenders. The items are charged under the drug sale and distribution statutes of California.

Elements the Prosecutor must Prove to Persuade the Judge You are Guilty

Being charged with possession of a device used in smoking or injecting illegal substances doesn’t mean you will be convicted. The prosecution attorney must prove certain elements to the jury to convince them that you are guilty of the crime. The factors include:

  1. Use, Intent or Design

The majority of items designed for purposes of illegal substance consumption have other legal uses. The same case applies to additional items intended for household use or legal use. They can also be used for unlawful injecting or smoking of illegal substances. The prosecutor must prove that you planned to use the tools on drugs or that you were using them for consuming a controlled substance.

  1. Circumstances

Before the judge or jury concludes that the devices were used for unlawful consumption of illegal drugs, they must consider certain factors. The prosecution must, therefore, show the court the paraphernalia was found near a controlled substance, and the devices or items contained drug residues. There are no particular circumstances that indicate an object is drug paraphernalia or not. It is up to the prosecution to prove why certain circumstances show that the devices were drug paraphernalia.

  1. Possession

You can be convicted of the crime if the prosecution attorney can prove that you were in actual or constructive possession and control of drug paraphernalia. Possession alone is not enough. The prosecution must show that you knew of the device’s presence, and you knew the items are used for the consumption of illegal drugs.

Penalties for Drug Paraphernalia Possession

Violation of HSC 11364 is a misdemeanor. If the prosecution convinces the jury or judge you are guilty, then you will face the following penalties:

  • Half a year sentence in LA county jail
  • No more than one thousand dollars fine

A conviction also has non-criminal consequences. These consequences are:

  • Loss of professional job license
  • Forfeiture of government benefits
  • Change in visitation rights
  • Change in child custody
  • Problems finding an employer or keeping a job

These penalties can impact your entire life negatively. As such, you must take drug paraphernalia possession charges seriously by hiring a reliable criminal attorney. Putting up a strong defense can help get the charges reduced or dismissed, thus preventing the above consequences.

Alternative Sentencing for Drug Paraphernalia Possession

Drug diversion can be alternative sentencing for violation of HSC 11364. However, not everyone is eligible for this alternative sentencing. Instead of spending six months in jail, the court opts for deferred entry of judgment program where undertake a drug rehabilitation program as an alternative. You are eligible for this alternative if

  • You have never been convicted of committing a non-violent, drug possession, or use a crime.
  • You haven’t had parole revoked
  • You haven’t been found guilty of a felony within the last five years
  • You haven’t undergone a drug diversion program over the previous five years
  • Your case doesn’t involve another drug crime not eligible for a drug diversion program

Keep in mind that to be granted a drug diversion sentence, you must enter into a no-contest plea or plead guilty for violation of HSC 11364. When in probation, there are certain conditions you must adhere to, which include drug testing. In the event you complete the probation and drug rehabilitation program, the charge of possession of drug paraphernalia will be dropped. Failure to complete the probation period and drug rehabilitation program can make the judge issue an order requiring you to serve a jail sentence.

Defending Drug Paraphernalia Possession Charges

Every individual accused of any crime has the right to a defense against the charges. The stronger the arguments you make, the more difficult it becomes for the prosecution to build a strong case against you. There are several legal defenses for HSC 11364 charges. The most frequent arguments include:

Lack of Control or Possession the Drug Paraphernalia

For the prosecution to convict you for the drug crime, they must verify to the jury that you had it on your person or had control over the drug paraphernalia. If you lacked control over the equipment, then you are not guilty of the drug crime, period. As earlier mentioned, possession can be actual or constructive. Your Los Angeles Criminal Attorney can put up an argument that you having access to a device or instrument used in the consumption of illegal drugs and narcotics or being near it doesn’t prove that you possessed it.

Lack of Knowledge

You would not violate the California drug paraphernalia possession law if you didn’t know that the device in your possession was paraphernalia. The defense is best for people who have a clean criminal record. Remember, for the prosecution to convict you, they must prove to the jury that you were fully aware that the item in your possession was used for illegal consumption of controlled substances. If you thought the item was something else, then you are not guilty of the crime.

Also, the prosecution can convict you if they can prove you knew of the presence of the drug paraphernalia. If you were not aware of the presence of the instrument, then a reasonable attorney will argue that you lacked primary intent. For the jury to be convinced you didn’t know the object was drug paraphernalia, they will consider if you have prior drug-related convictions, testimony from expert witnesses on the use of the object in question, and the statement you made regarding the use of the object. If all these things indicate a lack of knowledge, then you cannot be convicted of the crime.

Marijuana Paraphernalia

You will not be convicted in California for possession of drug paraphernalia if it is used to inhale tobacco or marijuana. The reason being tobacco consumption is legal. You can argue that the water bong was for legal smoking of tobacco and not marijuana. But if there are residues of marijuana in the water bong you possessed, then you will be charged with violation of California PC 11357 (possession of marijuana).

Legal Authorization to Possess Hypodermic Needles

A patient who has diabetes and other medical conditions need hypertonic needles and syringes. Apart from medical use, these items are also associated with heroin use. If you argue that you had legal authorization to possess these items, then you cannot be convicted of this crime. You have the legal authority to possess hypodermic needles if:

  • They are solely meant for personal use
  • You got them from an authorized source
  • You possessed less than ten needles or syringes.

Because the prosecution focuses on proving that you had no legal authorization, an excellent criminal defense attorney can make an argument that the needles or syringes were a medical necessity and were issued by an authorized source like a physician or doctor.

Failure to Follow Police Procedures

If drug paraphernalia was discovered through an illegal search and seizure, then the paraphernalia will be dismissed as evidence resulting in a reduced or dismissed charge. Every citizen of the United States is granted constitutional rights from illegal search and seizure by the Fourth Amendment rights. Arresting officers must, therefore, comply with these legal procedures when making an arrest. If the evidence against you in your case was obtained through unconstitutional means, your attorney can prove it to the court and have the evidence removed, which in turn could result in the case being won. 

The Device or Tool wasn’t a Paraphernalia

It is possible to argue that the object or device in question looks like paraphernalia, but in the real sense, it isn’t. You can claim the object is used for other purposes but not to inject or consume controlled substances.

Drug Paraphernalia Possession and Other Related Offenses

HSC 11364 is related to other offenses. These offenses include:

  1. Business Possession of Drug Paraphernalia, HSC 11364.5

As per HSC 11364.5, no one is permitted to maintain or run any business where drug paraphernalia is stored, displayed, sold, or transferred in any manner unless it is displayed elsewhere, where it is not accessible by underage persons not accompanied by their parents or guardians. If you are found in violation of this law, you will not face any criminal charges. Instead, your business operating license will be revoked. Also, the state of California will seize and secure paraphernalia.

  1. Manufacture and Transportation of Drug Paraphernalia, HSC 11364.7

HSC 11364.7 is another law similar to HSC 11364. According to this law, it is a crime for you to possess, produce or supply drug paraphernalia when fully aware that it will be used in the sale or consumption of a controlled substance or narcotic drug. An adult who supplies or provide minors with drug paraphernalia or possess needles or syringes in school knowing children might use it to inject a controlled substance, then he or she is punishable under this code section.

HSC 11364.7 is a more  severe crime compared to the possession of drug paraphernalia. The offense is a wobbler. If charged as a misdemeanor, the penalties in the event of a conviction include a criminal fine of no more than $1,000 and a jail sentence of 364 days. When the charge is deemed a felony, if convicted, you risk serving a prison sentence of sixteen months, twenty-four months, and thirty-six months or a criminal fine not exceeding $10,000.

  1. Aiding or Abetting Controlled Substance Use, HSC 11365

HSC 11365 prohibits you from being present when someone else is using an instrument or paraphernalia to consume a controlled substance, so long as you assist or encourage drug use. It means that you can be arrested for being in the wrong place at the wrong time. Luckily, frequently, there is no evidence showing that you were in possession or under the influence of an illegal substance.

There are elements the prosecution needs to prove that you were present for the unlawful use of an illegal drug. Some of the elements they need to demonstrate include:

  • You intentionally visited a place or were present in a place where someone else was consuming an illegal drug
  • You were aware that the other person had plans to use the controlled substance
  • You were willing to encourage the other person to consume the drug
  • You said or did something that encouraged them to consume the drug
  • You were fully aware your words on actions would aid them in using the illegal drug or narcotic

The controlled substance or illegal drugs under this law include:

  • Heroine
  • Methamphetamine
  • Cocaine
  • Cocaine base
  • Mescaline
  • Peyote

It is not illegal to be present when someone is using marijuana in California. If charged and convicted of violating HSC 11365, the penalties are:

  • Summary probation with a condition of a compulsory drug rehabilitation program,
  • Jail sentence of 180 days and
  • Up to $1,000 in fines for a misdemeanor.

This law is very similar to HSC 11364 because, in both, people are eligible for a drug diversion program in place of sentencing. The program allows the charges to be suspended as you undergo drug rehabilitation. After the successful completion of the program, the charges for violating HSC 11365 are dropped. The conditions for qualifying for deferred entry of judgment in both laws are the same.

When fighting charges of being present when someone is using a controlled substance, you can use the following defenses:

  • You were not aware that drug use was taking place
  • Your conduct was not aiding or abetting controlled substance use
  1. Possession of Controlled Substances, HSC 11350

HSC 11350 forbids possession of a controlled substance. Some of the drugs considered as controlled substances as per this law include:

  • Cocaine
  • Heroin
  • Peyote
  • Opiates

You will have committed a drug crime if you are found in actual or constructive possession of these controlled substances. For the prosecution to convict you for this drug crime, they must ascertain that:

  • You unlawfully possessed an illegal drug
  • You knew of its presence
  • You knew about its nature as a controlled substance
  • The amount of illegal drug was in usable amounts

When convicted of this offense, you serve a maximum of three years in prison for a felony charge. There is also a provision for a drug diversion program under Prop 36.

Find a Los Angeles Criminal Defense Attorney Near Me

Being charged with possession of drug paraphernalia crime might not seem like a big deal. However, a conviction can have severe consequences. The rise in drug crimes has forced the California legislature to enact laws and harsh penalties for drug-related crimes. If, therefore, you have been arrested or accused of a paraphernalia crime, speak to the Los Angeles Criminal Attorney. We have the knowledge and resources you need to build a strong defense. Call us today at 424-333-0943 for a free face to face or phone consultation.