Most people assume that possession of drug paraphernalia is a minor offense. At times, actual possession of drugs in California may be a minor infraction. For this reason, many people assume that possessing drug paraphernalia is also a minor offense. However, this is not the case; you may face stiffer penalties for possessing drug paraphernalia than for handling other controlled substances. The California Health and Safety Code 11364a makes it a criminal offense to possess drug paraphernalia. Drug paraphernalia refers to any equipment, material, or product designed to prepare, process, inject, inhale, convert, or introduce drugs to the human body. The Los Angeles Criminal Defense Attorney can assist you in fighting charges for possessing drug paraphernalia in Los Angeles, CA.
Possession of Drug Paraphernalia Law
According to the California drug paraphernalia law, you should not possess any device or pipe, instrument, contrivance, or paraphernalia for unlawfully smoking or injecting a controlled substance to the body. The California law offers some exceptions concerning the drug paraphernalia law. For instance, until 2021, it is not a criminal offense to possess hypodermic syringes or needles under certain circumstances. You may possess the syringes and hypodermic needles as long as they are for your personal use. You may also possess hypodermic needles and syringes if you acquired them from a pharmacist, a physician, or a syringe or needle exchange program. As long as you acquired the syringes and hypodermic needles from a source authorized by the law, you are free to possess them.
This exception to the possession of syringes and hypodermic needles helps prevent the transmission of bloodborne diseases like HIV among people who use injectable drugs.
Common Items of Drug Paraphernalia
Some of the common items of drug paraphernalia include methamphetamine pipes and cocaine spoons. The current California law allows people to possess syringes and hypodermic needles for personal use. It is legal to have these items as long as they are from legal sources. Other items that fall under drug paraphernalia include roach clips, smoking masks, hashish bongs, crack cocaine pipes, and glass hashish pipes. Some people may use hollowed out cosmetic cases or fake pagers to conceal illegal drugs. In these cases, these improvised drug concealment items may also qualify as drug paraphernalia.
Before the prosecutor accuses you of possessing drug paraphernalia, the prosecutor has to prove several elements of the crime. For instance, the prosecutor has to prove that you had the right to control or that you were exercising control over the drug paraphernalia at the time of the arrest. To face charges, you must have been aware that the drug paraphernalia was present. You must also have known that the items you possessed qualified as drug paraphernalia.
When determining if you had control over drug paraphernalia, the court considers both direct control and constructive control. Having direct or active control means that you were physically carrying the drug paraphernalia on your persona. For instance, if the police discovered drug paraphernalia in your pocket, it would be evident that you have actual or direct control over the drug paraphernalia.
You may also have constructive control over drug paraphernalia. For instance, you may be controlled if you store some drug pipes in your bedroom dresser. You may also be in joint control of drug paraphernalia with another person. For instance, if you have some drug paraphernalia in a bathroom that you share with your spouse, you may be in joint control of the drug item.
If you possess items typically used in the manufacture and sale of drugs, you may not face charges under the Health and Safety Code 11364. Instead, you will face charges under HD 11351 for drug possession for sale. You may also face charges under HS 11352 for transporting or selling a controlled substance. The items that may attract these additional charges include balances and scales commonly used in measuring and weighing drugs. You may also face additional charges for possessing spoons, bowls, blenders, and other mixing devices used in compounding controlled substances. Other items that may attract additional charges include balloons, capsules, or other containers used in packing or concealing drugs.
The prosecutor cannot accuse you of possessing drug paraphernalia unless the items in your possession are associated with controlled substances and narcotics. According to California law, controlled substances mainly consist of certain drugs and drug-like substances, including hallucinogens, opiates, stimulants, and depressants. Some of the common narcotics and controlled substances in California include heroin, PCP, methamphetamine, and cocaine.
It is important to note that the law exempts marijuana from the possession of drug paraphernalia law. The state of California has a separate law that regulates cases associated with marijuana. Under Proposition 64, it is legal to use marijuana for recreational and personal use. Therefore, possessing drug items for marijuana use is legal.
Use of Innocent Objects
The police are aggressive in eliminating the illegal use of controlled substances and narcotics in society. Therefore, police arrests associated with drug paraphernalia are not limited to crack pipes and needles. Instead, the police often arrest individuals for possessing any object that can introduce drugs into the body. Such items include soda cans and pens. In some instances, the police end up arresting innocent people and charging them with possession of drug paraphernalia. If the police suspect you of using or possessing drugs, they may assume that innocent items are drug paraphernalia and place charges on you. If falsely accused of possessing drug paraphernalia, an experienced criminal defense attorney can help defend you.
Several exemptions to the possession of drug paraphernalia exist in California. Certain people cannot face prosecution for possession of drug paraphernalia because the law exempts them. For instance, police officers are exempt from this law. Any person working under the immediate supervision or direction of police officers is also exempt from the possession of drug paraphernalia law.
Other persons exempt from this law include doctors, podiatrists, dentists, pharmacists, and veterinarians. These people have the licenses and the legal authority from the California State Board of Pharmacy to prescribe and sell or to possess needles, syringes, or other items for injecting drugs into the body.
Household Items as Drug Paraphernalia
Under California's drug paraphernalia laws, certain household items may qualify as drug paraphernalia. For instance, simple household items like spoons may qualify as paraphernalia, depending on how you use them. If you use the items to inject or inhale a controlled substance unlawfully, the items may qualify as paraphernalia. If you assemble household items in a fashion common to drug use, you may face charges. You may also face charges if the police find traces of drugs in your household items. Traces of drugs on the household items would mean that you used the items as drug paraphernalia.
However, simple possession of household items may not attract charges for possession of drug paraphernalia. As long as the household items are for legal use, the police or the prosecutor cannot accuse you.
Consequences for Possession of Paraphernalia in California
The crime of possession of drug paraphernalia is a misdemeanor under California law. If you violate the California Health and Safety Code 11364, some of the possible consequences include jail time that does not exceed six months. The court might also impose a fine not exceeding $1,000. Illegal possession of drug paraphernalia also poses an additional risk of suspension of your professional license. Therefore, if you are a professional like a doctor, teacher, contractor, lawyer, or real estate agent, the court may suspend your professional license after a conviction of possession of drug paraphernalia. For instance, if the prosecutor accuses a teacher of possessing drug paraphernalia, the teacher has to take a leave of absence from school, awaiting the resolution of the charges.
Some crimes of possession of drug paraphernalia may be punishable by jail time of up to one year in a California county jail. For instance, the manufacturing or delivery of drug paraphernalia is punishable with jail time of up to one year and a maximum fine of $1,000. The crime of furnishing or availing drug paraphernalia to a minor below 18 years is also a misdemeanor under California law. The associated consequences in jail time of up to one year in county jail. The offense of possessing a hypodermic needle close to school grounds also attracts a jail time of up to one year in county jail and a fine not exceeding $1000.
According to the California Health and Safety Code 11364.5, the law on possession of drug paraphernalia also applies to businesses, and violation of the law may lead to adverse consequences. California law considers it illegal to operate a business whereby you stock drug paraphernalia. If you have to operate this business, you have to keep or display the paraphernalia in a separate room. Minors below the age of 18 years should not access the room unless an adult accompanies them. If your business deals with items that qualify as drug paraphernalia and you violate the set rules and standards, you risk revocation of your operating license. The violation of the law may also cause non-renewal of your operating license. The consequences of possessing drug paraphernalia may be detrimental to your business. It is, therefore, important to ensure that you contact a criminal defense attorney to negotiate on your behalf.
A conviction of possession of drug paraphernalia may also affect other areas of your life. For instance, after a conviction, it may be difficult for you to find a job. Potential employers always run background checks on job applicants. You may even have problems renting an apartment if a potential property owner runs a background check on you. After a conviction, it may be difficult for you to hold a professional license, especially for professions like teaching, pharmacy, and health care. A conviction for possession of drug paraphernalia may also affect your chances of getting a green card. If you are not a U.S citizen, it may be hard for you to apply for citizenship in the U.S.
After a conviction of possession of drug paraphernalia, the court has several sentencing options. The type of sentencing the court recommends may depend on various factors. The factors include the circumstances surrounding the case, the discretion of the judge, and your criminal history.
After conviction, you might have to pay a fine not exceeding $1,000 and serve up to one year in county jail. The court may also subject you to both probation and jail time, not exceeding one year. In some instances, the judge might recommend probation without jail time. While on probation, you may have to adhere to several conditions, including attending a drug counseling program and performing community service. The court might order you to attend substance abuse classes or order a work-release program. In some instances, the sentencing may involve enrolling in a drug diversion program. Upon the successful completion of the program, the court may dismiss your charges.
Drug Diversion Program Instead of Jail Time
After a conviction of possession of drug paraphernalia, you may be eligible for alternative sentencing through a drug diversion program instead of jail time. The court offers drug rehabilitation instead of jail time to people guilty of committing non-violent drug use or drug possession offenses. The California Penal Code 1000PC outlines the drug diversion program, also known as deferred entry of judgment program.
Participation in a drug diversion program involves entering a guilty plea to the possession of drug paraphernalia charges. While on the program, you might be subject to random drug testing. This is a form of testing that takes place when you least expect it. Random drug testing ensures that you stay off drugs. You may also have to undergo drug rehabilitation while serving the drug diversion program.
Upon the successful completion of the drug diversion program, the court will dismiss your charges for possessing drug paraphernalia. However, if you do not abide by the terms of the drug diversion program, the judge has a right to revoke the program and recommend jail time as well.
Eligibility for Drug Diversion Program
You may be eligible to participate in the California drug diversion program if you do not have previous convictions for drug offenses. You may also participate in a drug diversion program if your case does not threaten violence or actual violence. If your possession of drug paraphernalia case does not involve evidence of other narcotics or controlled substances violations, you may participate in the program. If you have not had your parole or probation revoked for failure to comply, you may participate in the drug diversion program.
To be eligible to participate in the drug diversion program, you should not have been through a drug diversion program within the last five years. You should also be free of a felony conviction within the last five years for you to take part in a drug diversion program.
Some factors may lead to disqualification from participating in a drug diversion program. For instance, you may not be eligible to participate in the program if you commit a separate misdemeanor not involving drug use or possession. The separate misdemeanor may include operating your vehicle under the influence of drugs. You may also not qualify for the drug diversion program if you commit an additional felony.
Participation in a drug diversion program is a great opportunity, especially if you have a drug abuse problem. You will have a chance to take part in a complete substance abuse treatment. After successful completion of the treatment and after you meet other conditions set by the court, the court will dismiss your drug possession charge. You will have a chance to get your life back on track.
After the court dismisses your charges after completing the drug diversion program, the criminal record will no longer suffice on your criminal history. For instance, when applying for a job, potential employers will not see the conviction even after running a background check on you. Therefore, it is always advantageous to enroll in a drug diversion program instead of serving jail time or other sentencing alternatives.
Common Legal Defenses for Possession of Drug Paraphernalia Charges
When the prosecutor accuses you of possessing drug paraphernalia, you may employ several legal defenses to fight the charges in court. With the help of an experienced criminal defense attorney, it is possible to challenge the evidence of the prosecutor in court. Some of the common legal defenses for a violation under HS 11364 include:
No Possession of Drug Paraphernalia
You may fight possession of drug paraphernalia charges by asserting that you did not possess the paraphernalia or that you did not have control over the drug paraphernalia. It is not always easy for the prosecutor to prove possession of drug paraphernalia. In the case of actual possession of drug paraphernalia, it may be hard to prove that you did not possess the drug paraphernalia. However, in the case of constructive possession, it is easy to challenge the prosecutor's evidence. The prosecutor may accuse you of constructive possession as long as the said item was within your control and dominion, even if the item way not in your physical possession.
For the prosecutor to prove constructive possession beyond a reasonable doubt, the prosecutor has to connect several dots. However, the prosecutor may connect the dots the wrong way, and in some other instances, some dots may be missing. If the paraphernalia was in your kitchen yet you share the house with other people, you might deny possession of the paraphernalia. The fact that you share the house with other people means that the paraphernalia may belong to the other occupants. With the help of an attorney, you may be able to fight the possession charge.
The Items you possessed were not Drug Paraphernalia
Just because an item resembles drug paraphernalia or looks like it can introduce drugs to the body does not qualify it to be drug paraphernalia. What may look like drug paraphernalia to the prosecutor may be items that you use to administer medicine to your pets. The prosecutor has to prove that you possessed drug paraphernalia and not any other item that does not qualify as paraphernalia. The fact that people often perceive a certain item as drug paraphernalia does not give the prosecutor the right to assume that it is paraphernalia. In the past, people used to wear roach clips in their hair. A prosecutor may accuse you of wearing certain types of clips, especially the feathered clips. However, unless he/she proves that what you had was drug paraphernalia, you cannot face charges.
Lack of Knowledge
Lack of knowledge may serve as a valid defense in two instances. First, you may assert that you were not aware that the item you possessed was drug paraphernalia. The law states that unless you are aware that the item you possess is drug paraphernalia, you cannot face charges. This defense may work well for you if you are a first time offender, and if you do not have a criminal drug history.
In determining whether you knew whether an item was drug paraphernalia, the court will determine if you have prior drug-related convictions. If you have a prior drug history, chances are high that you can identify drug paraphernalia.
You may also assert that you were not aware of the presence of the drug paraphernalia. Even if the police find you in possession of drug paraphernalia, you have a right to acquittal as long as you did not know you possessed the paraphernalia. This defense may be applicable if a person borrowed your item of clothing and put the drug in the pocket without your knowledge and returned the item to you. Another person may also leave drug paraphernalia in your vehicle without your knowledge.
Illegal Search and Seizure
You may also fight charges for possession of drug paraphernalia if you feel that the police subjected you to illegal search and seizure. The police must obtain a search warrant before searching your house or your vehicle. If the court establishes that you are a victim of an illegal search and seizure, the court may dismiss the evidence obtained illegally.
Contact a Los Angeles Criminal Defense Attorney near Me
You do not have to fight the adverse consequences of possession of drug paraphernalia alone. The Los Angeles Criminal Defense Attorney can help you come up with proper defense in Los Angeles, CA. Contact us at 310-564-2605 and speak to one of our attorneys.