In California, having drug paraphernalia is against the law as these items are linked to using, preparing, or hiding illegal substances. It is worth noting that having drug paraphernalia is treated as a distinct offense from possessing controlled substances. Specifically, in California, being in possession of drug paraphernalia will lead to prosecution under Health and Safety Code 1136. This violation is a misdemeanor offense.

It is in your best interest to engage an attorney if you or your loved one is facing possession of drug paraphernalia. Contact the California Criminal Lawyer Group should you face these charges in Bakersfield.

What is a Drug Paraphernalia?

Drug paraphernalia comprises various tools and equipment used in the consumption, concealment, and production of illicit drugs. This category includes items like bongs, roach clips, miniature spoons, and various types of pipes. According to federal law, United States Code (U.S.C.), Title 21, Section 863, drug paraphernalia is defined as any product, equipment, or material primarily intended or designed for use in activities related to controlled substances. These activities include manufacturing, compounding, injecting, processing, introducing,  converting, concealing, producing, inhaling, preparing, or ingesting controlled substances into the human body.

These items are available through various channels. Many manufacturers promote their products online and through mail-order businesses. Drug paraphernalia is commonly found in gas stations, tobacco shops, trendy gift and novelty stores, and convenience stores.

Recognizing drug paraphernalia poses challenges. Manufacturers often market these products under the guise of legitimate purposes. For instance, pipes and bongs could misleadingly claim to be intended exclusively for tobacco use.

The appearance of drug paraphernalia comes in all variations. Manufacturers increasingly incorporate bright, trendy colors and designs featuring symbols like dragons, skulls, devils, and wizards. This effort aims to glamorize these products to appeal to teenagers and young adults.

Possession of Drug Paraphernalia Under California Law

Under Health and Safety Code 11364, possessing items like opium pipes for illicit drug use is against the law. However, the same section outlines exceptions. It is legal to have hypodermic needles or syringes if they are safely containerized according to state and federal standards for sharps waste disposal.

Moreover, considering public health, the code has an extra exception. The section does not apply to individuals who:

  • Possess hypodermic needles or syringes strictly for personal use.
  • Acquire them from authorized sources like physicians, pharmacists, needle or syringe exchange programs, or other legal providers of sterile needles without a prescription.

These exceptions strike a balance, recognizing the need for legal restrictions while addressing public health concerns. They highlight the importance of harm reduction strategies and access to sterile equipment to prevent disease transmission among individuals using injectable drugs.

You are only guilty if the prosecution proves the following elements to be true:

  • Control or constructive possession — Prosecutors must demonstrate that you either physically controlled or constructively possessed the drug paraphernalia.
  • Knowledge of presence — Prosecutors must show that you were aware of the presence of the drug paraphernalia. This underscores that the possession was intentional, not accidental or unknowing.
  • Knowledge of illicit nature — The prosecution has the burden of proving that you knew the items in your possession were drug paraphernalia. Further, he/she must demonstrate that you were aware of their connection to illegal drug-related activities.

Let us look at each of the elements in detail.

     a) Control Over the Drug Paraphernalia

When it comes to having drug paraphernalia, control can take two forms: actual or constructive.

Actual control means physically having the paraphernalia within your reach or on your person. For example, a cocaine pipe in your pocket.

You have constructive control over something when either:

  • You actively control that item. For example, you can constructively possess the pipe if you own it and leave it on your TV stand.
  • You can control the item independently or jointly with another person. For example, you constructively possess a shared pipe with your wife, kept at home in the bathroom.

     b) Drug Paraphernalia

Health and Safety Code 11364 does not cover items commonly associated with drug manufacturing and sales. These include:

  • Mixing devices like bowls and blenders
  • Scales and balances for measuring drugs, and
  • Containers like balloons and capsules for concealing or packaging drugs

Instead, the possession of items linked to drug manufacture or sale is typically addressed under:

  • Health and Safety Code 11351 — This law addresses drug possession for sale or
  • Health and Safety Code 11352 — This law addresses the transportation or sale of a controlled substance

Common devices, if found in possession, that would result in charges under HSC 11364 include:

  • Glass tubes — Used for smoking crack cocaine
  • Grinders — Devices used to break down buds into smaller particles for smoking
  • Pipes and bongs — Used to smoke substances like methamphetamine
  • Spoons and mirrors — Used in preparing and snorting drugs like cocaine.
  • Syringes and needles — Often linked to injecting drugs such as heroin or other illicit substances.

When deciding whether an object qualifies as drug paraphernalia, the court takes into account a variety of factors:

  • Examine any oral or written instructions regarding the object and its usage.
  • Checking if the owner or person in control has any previous convictions under state or federal laws related to controlled substances
  • Assessing whether the owner or controller is a legitimate supplier of similar items to the community, like a licensed distributor or dealer of tobacco products
  • Any remarks made by the owner or person in control about how the object is meant to be used
  • Looking at direct or circumstantial evidence indicating the owner's or controller's intent to provide the object to individuals known or reasonably believed to use it for illegal drug activities. Even if the owner is innocent of a direct violation, it does not necessarily prevent a finding that the object is meant for drug-related use.
  • Checking descriptive materials that accompany the object, explaining or illustrating its use.
  • Scrutinizing both national and local advertising related to how the object is used.
  • Observing how the object is showcased for sale.
  • Considering the existence and extent of legitimate uses for the object in the community
  • Listening to testimony from experts about the intended use of the object.

These factors collectively help the court grasp the object's purpose and determine whether it qualifies as drug paraphernalia.

Note: HSC 11364.5(g) carves out an explicit exception for specific equipment. This exception includes testing equipment explicitly designed for substances like fentanyl,  gamma-hydroxybutyric acid, ketamine, or any analog of fentanyl. In simpler terms, gear tailored for testing these specific substances is not lumped into the broader category of drug paraphernalia.

     c) Controlled Substances

Controlled substances are drugs regulated by government authorities due to their potential for abuse or dependence. These substances are categorized into schedules under the Controlled Substances Act administered by the Drug Enforcement Administration (DEA), which aims to balance medical uses with preventing misuse and abuse.

These substances fall into categories like stimulants, depressants, hallucinogens, and opiates. Examples include stimulants like methamphetamine and cocaine, opiates like heroin, and hallucinogens like PCP.

On the other hand, narcotics refer to sedative drugs that induce sleep or numbness. Traditionally associated with opium-derived substances, it commonly describes opioids. These include morphine, heroin, oxycodone, and fentanyl.

Marijuana is exempted from California's possession of drug paraphernalia law. Offenses involving marijuana paraphernalia fall under separate regulations outlined in California's marijuana laws.

Proposition 64, California's marijuana legalization law, has effectively decriminalized most personal use of recreational marijuana. Consequently, possessing paraphernalia associated with personal marijuana use is typically exempt from the drug paraphernalia laws applicable to controlled substances.

Parties Exempted From Prosecution Under HSC 11364

Specific individuals, for example, police officers and licensed medical practitioners under the purview of the California State Board of Pharmacy, enjoy exemptions from prosecution for possessing drug paraphernalia.

Police officers are typically granted this exemption while conducting their official duties. This allows them to handle and collect paraphernalia for law enforcement activities.

On the other hand, licensed medical practitioners have specific types of paraphernalia related to their medical practice, provided they align with their professional responsibilities. The California State Board of Pharmacy has the authority to allow the sale, prescription, or transfer of hypodermic syringes, needles, or other items designed for injecting drugs into the body.

Note: Businesses that deal with drug paraphernalia are obligated to house these items in a distinct area, like a separate room or enclosure. Access to this space should be restricted to individuals under 18. Additionally, there must be visible signage indicating the presence of drug paraphernalia. Minors are generally prohibited from entering areas where drug paraphernalia is stored unless accompanied by a parent or legal guardian. This regulation is in place to ensure that individuals under 18 are not exposed to drug-related items within these establishments.

Defenses You Can Assert in a Possession of Drug Paraphernalia Case

Defending against a charge under the Health and Safety Code (HSC) 11364 involves exploring common defenses. These defenses are tailored to the unique circumstances of each case. Examples of the common defense strategies you could use include the following:

     a) No Control Over the Drug Paraphernalia

Recall that physical possession implies having the item on your person. On the other hand, constructive possession suggests the ability and intent to control the device, even if not physically, on your person.

Asserting that you had no control means challenging the prosecution's assertion that you had possession or ownership of the drug paraphernalia. Your attorney will present evidence or arguments demonstrating the absence of any connection between you and the items. He/she will emphasize factors like:

  • The location of the items
  • The presence of other individuals with access or
  • A lack of awareness regarding the paraphernalia

Establishing an evident lack of possession is crucial for a robust defense against charges related to drug paraphernalia. It requires a careful examination of the circumstances surrounding the arrest and seizure of the items.

     b) There Was No Awareness that the Object Was Drug Paraphernalia

If law enforcement discovers drug paraphernalia in your possession, the "lack of awareness" defense becomes pivotal. This defense relies on proving that you genuinely did not know that the item was drug paraphernalia. This, then, warrants exempting you from guilt under California's drug paraphernalia possession law. Establishing your lack of awareness regarding the item's nature is critical.

Your defense would focus on showing that you were unaware of the item's association with illegal drug-related activities. This could involve presenting evidence related to the circumstances of the discovery, highlighting your behavior, or introducing statements that indicate your genuine lack of knowledge about the item's intended use.

Note: While a clean slate with no prior drug-related convictions can potentially enhance the effectiveness of the "lack of awareness" defense, its impact varies based on several factors:

  • No criminal record strengthens your overall credibility. It makes it more believable that you genuinely lacked awareness about the nature of the item.
  • The prosecution could factor in your criminal history when challenging the believability of your lack of awareness. A history of drug-related offenses leads them to argue that you should be more knowledgeable about drug paraphernalia.

Ultimately, the success of this defense depends on legal standards and the specifics of your case. The court will scrutinize evidence and arguments, considering the circumstances surrounding the discovery of drug paraphernalia.

     c) The Object is Not Listed as a Drug Paraphernalia

In challenging a drug paraphernalia charge, the "object wasn't paraphernalia" defense is one of the defense strategies you can employ. With this defense, you assert that the item in question does not fit the bill concerning characteristics or intended use linked to drug-related activities.

You must provide evidence highlighting the item's legitimate and lawful purposes, steering away from any association with drug-related activities. Additionally, you cast doubt on the prosecution's ability to prove that the item was specifically designed or intended for use with controlled substances.

Consider a glass pipe as an example. Although some could link it to drug use, you can argue that, for you, it serves lawful purposes like smoking tobacco.

Success with this defense hinges on factors such as:

  • The item's specific characteristics
  • The circumstances of its discovery, and
  • Your ability to establish its legitimate purpose.

     d) You Were Unaware of the Drug Paraphernalia’s Presence

You can argue that you did not know about the paraphernalia's presence. While using this defense, you argue that you cannot be held responsible if you lack knowledge about the paraphernalia's existence. This defense hinges on the idea that accusations of possession are baseless without awareness of the item.

This defense unfolds a myriad of potential scenarios where it could apply to drug paraphernalia possession charges. These instances include:

  • Someone maliciously placed drug paraphernalia among your belongings without your knowledge.
  • In shared living or public areas where multiple people have access, you genuinely lack awareness of drug paraphernalia.
  • Unknowingly borrowing an item containing drug paraphernalia
  • Possessing these devices without a thorough knowledge of their contents, perhaps left behind by others
  • Encountering an object resembling drug paraphernalia without being aware of its actual nature
  • Possessing items that do not overtly appear to be drug paraphernalia leads to a lack of awareness

Effectively using this defense requires presenting evidence or arguments highlighting your lack of knowledge about the paraphernalia's presence. This involves scrutinizing the circumstances of its discovery, your actions, or any statements indicating genuine ignorance about its existence.

     e) Police Officers Obtained The Paraphernalia Through an Illegal Search and Seizure

As previously mentioned, closely examining the circumstances of the discovery can be pivotal in challenging the entire case, particularly by invoking the "unlawful search and seizure" defense. If you can show that the search and seizure of the alleged drug paraphernalia were conducted unlawfully, it can significantly impact the admissibility of the evidence and the overall case.

By thoroughly scrutinizing the circumstances, you and your defense attorney could:

  • Check search warrant validity — Verify if police officers conducted the search with a valid warrant and scrutinize its issuance and execution.
  • Review warrantless searches — If the officers searched your person or premises without a warrant, assess whether any exceptions that would justify a warrantless search were applicable.
  • Examine consent issues — If you did not provide voluntary consent and there was no valid warrant, challenge the lawfulness of the search.
  • Evaluate Fourth Amendment violations — Assess whether law enforcement overstepped their authority or violated your Fourth Amendment rights.
  • Consider the exclusionary rule — If the evidence was obtained through an unlawful search, explore the application of the exclusionary rule to exclude the evidence from trial.

Note: The exclusionary rule is foundational. It states that evidence procured in violation of a defendant's constitutional rights, particularly those shielded by the Fourth Amendment against unreasonable searches and seizures, is generally inadmissible in court. This rule serves two purposes:

  • Deterring law enforcement misconduct and
  • Shielding individuals from the fallout of illegal searches and seizures.

Evidence obtained through an unlawful search, seizure, or other constitutional transgression risks being tagged as the "fruit of the poisonous tree." This indicates its ties to an initial illegality. Consequently, the courts could deem this evidence inadmissible, barring its use in legal proceedings.

Consequences if You are Convicted of Possessing Drug Paraphernalia

A violation of HSC 11364 is a misdemeanor. Convictions result in the following penalties:

  • A maximum of 6 months in jail
  • A fine of up to $1,000

Note: Whereas a violation of HSC 11364 is a misdemeanor, convictions have implications for professional license holders. The impact on professional licenses depends on the profession and its licensing board.

In instances of convictions, licensing boards could initiate disciplinary actions. They could consider factors like public safety, adherence to professional conduct, and ethical standards. Depending on the policies and regulations of the licensing board associated with a particular profession, disciplinary measures could include the suspension or revocation of professional licenses.

Alternative Sentencing

If you find yourself facing a conviction under California's HS 11364 for drug paraphernalia possession, there is a potential alternative: drug diversion programs. This option is designed to prioritize rehabilitation over conventional penalties. These programs offer a pathway for those convicted of nonviolent drug possession offenses.

Eligibility hinges on various factors, including the nature of the offense and criminal history. Participants engage in drug rehabilitation and counseling to address the root causes of substance abuse.

Two primary routes for alternative sentencing stand out:

  • California Proposition 36 — Often referred to as the Substance Abuse and Crime Prevention Act, Proposition 36 extends the option of drug treatment instead of incarceration for eligible individuals. It includes those with drug paraphernalia possession convictions.
  • Penal Code 1000 (Deferred Entry of Judgment) — Tailored for non-violent drug offenses, this program allows participants to enter a guilty or nolo contendere plea. Successful completion of a designated drug treatment program could lead to the dismissal of charges.

By embracing these programs, individuals pivot towards a rehabilitation-centric approach. Successful completion not only promises a potential reduction in charges but also opens the door to outright dismissal—a more favorable resolution for those seeking a second chance.

Note: A subsequent conviction under Health and Safety Code 11364, paired with a separate misdemeanor unrelated to simple possession or drug use, automatically disqualifies individuals from accessing a drug diversion program. These offenses include driving under the influence of drugs or a felony. In these cases, the avenue for alternative sentencing through drug diversion is closed.

Find an Experienced Bakersfield Criminal Defense Attorney Near Me

Drug-related offenses, including HSC 11364 violations, come with significant repercussions upon conviction. Engaging a criminal defense attorney to fight these charges effectively is in your best interest. Doing so ensures a thorough examination of your case, exploration of viable defenses, and strong advocacy in your favor.

Seasoned attorneys bring valuable expertise to the case. Our attorneys work towards minimizing the impact of the charges and striving for the most favorable outcome. When confronted with such allegations, seek counsel from the California Criminal Lawyer Group. Our Bakersfield team will work to protect your rights and secure the best possible result. Contact us at 661-750-8230 to schedule your initial free case evaluation today.