A charge of possession of drug paraphernalia is often more serious than most people expect. It is not only a matter of having a prohibited pipe or a syringe. The law has a broad definition of paraphernalia. It can include many otherwise innocent items like scales, bags, or even spoons when they are associated with the use of illegal drugs. A conviction may result in substantial penalties, including fines, incarceration, and a criminal record that can impact your employment, housing, and personal life.
Since these charges may be complicated and their penalties harsh, it is important to be represented by a professional. Drug paraphernalia charges can be serious. Speak to attorneys at CCLG: Los Angeles Criminal Attorney today to discuss your rights and develop an effective defense. Our skilled attorneys will do their best to defend your future.
What Is Drug Paraphernalia Under Health and Safety Code 11364??
California Health and Safety Code 11364 HS defines the possession of an opium pipe or any device, contrivance, instrument, or paraphernalia used in the unlawful injection or smoking of a controlled substance as a crime. The legal definition is broad, enabling law enforcement to confiscate several items. What matters is not the item itself, but how it is intended to be used. A harmless object might turn into illegal paraphernalia when it is used in a way that indicates drug consumption.
To make the law easier to understand, drug paraphernalia in California is divided by its intended purpose:
- Items to be used or consumed — These are used directly in ingesting or smoking a controlled substance. This category contains all the devices that are specifically manufactured to be used with drugs, along with the ordinary objects that are repurposed to be used with drugs.
- Smoking devices — These are pipes, bongs, and water pipes, often made of glass, metal, or ceramic, commonly used with substances like meth or crack.
- Injection equipment — Syringes and hypodermic needles to inject drugs like heroin
- Other ingestion devices — These may include household spoons, straws, or glass pipes that show modifications or traces of drug use, indicating they were used to ingest drugs. A spoon with burn marks on the bottom, which is a household item, can be deemed as paraphernalia when it is found in a place that indicates that it was used to prepare heroin.
- Items being processed or packaged — Though prosecutors often charge some of the items in this category under other sections of the law, their possession can still be relevant to a paraphernalia charge, particularly when they are found along with personal quantities of drugs.
- Scales and balances — Weighing out controlled substances
- Sifters and grinders — They are used to break down and process drugs to use
- Packaging materials — Small plastic baggies, capsules, and balloons to hide or divide up drugs
California laws acknowledge a significant exception to possessing hypodermic needles and syringes. Health and Safety Code 11364(d), a public health law, excuses an individual from the crime of possessing hypodermic needles or syringes as long as they are to be used personally and the needles or syringes were obtained through a legitimate source, for example, a pharmacy or a needle exchange program. This is a critical issue because it means not all possession of a syringe is automatically a crime. As the defendant, you must show that you acquired the syringe lawfully and wanted to use it personally and not share it.
The vagueness in the term ‘drug paraphernalia’ means that a prosecutor will also have to demonstrate that you were aware of the existence of the item and that you were aware of its intended use in the consumption of illegal drugs. The circumstances surrounding where the item is located, for example, the presence of drug residue, being near controlled substances, or what you said, are often the key to building a case.
The Prosecutor’s Burden in a Possession of Drug Paraphernalia Case
To secure a conviction on a possession of drug paraphernalia charge under Health and Safety Code 11364, a prosecutor must prove that you had the item. They should also establish that you had the intent to use the item with a controlled substance beyond a reasonable doubt. The prosecutor needs to prove not only that you knew that the item existed, but also that you intended it to be used unlawfully.
Prosecutors use circumstantial evidence to prove this intent. This is indirect evidence that suggests a conclusion rather than proving it directly. This is how a prosecutor can attempt to prove your intent in court:
Your Proximity to Drugs
The most common method that prosecutors use to establish intent is by demonstrating that the supposed paraphernalia were in proximity to a controlled substance. For example, where a scale and a bulk of methamphetamine are found in the same drawer, the scale then becomes very strong circumstantial evidence that it was used to weigh the drugs. Without the drugs, the scale is a mere scale. The physical proximity of the items produces a high inference of their intended illegal use.
Residue and Physical Evidence
The next critical piece of evidence is the presence of residue on the item. A prosecutor may have an item tested by a laboratory if the test shows positive traces of a controlled substance, like cocaine or heroin, which suggests that a substance was recently used to ingest a drug.
A pipe with meth residue or a spoon with burn marks and heroin residue would be very incriminating. This evidence can transform an otherwise unclear item into clear drug paraphernalia to a jury.
Your Statements and Admissions
Anything you do say may be given in evidence against you. Anything you say or write about the item’s purpose, no matter how insignificant it may appear at the time, can be used to establish intent.
For example, when an officer asks you what the pipe is and you answer, “It is my weed pipe,” you have given direct evidence of your intent. Your Fifth Amendment right to remain silent is fundamental in this case because the prosecution can use anything you say to prove the element of intent required.
The Manner of Display and Context
How an item is displayed or presented can also be circumstantial evidence. It is often referred to as the manner of display. A water pipe, which would otherwise be legal, may be deemed drug paraphernalia in the right circumstances. For example, an ornamental water pipe on a shelf would not be sufficient to prove intent alone. But when that same water pipe is discovered in a vehicle in its center console next to a small bag of marijuana and a lighter, the context changes dramatically. Prosecutors will claim that this is a drug kit and the items are set up so they can be used immediately and illegally. This broader context assists them in creating a strong story that links the item to illegal activity, thus demonstrating your intention.
Possession Under California Law
Most individuals charged with drug paraphernalia are shocked to discover that they can be found guilty even though the item was not in their pocket or hand. Possession is a broad term that means more than direct physical contact. The prosecution may charge you based on three different kinds of possession, namely:
Actual Possession
Actual possession is the simplest of possessions. You possess an item when it is in your person or within your reach. For example, when a police officer discovers a syringe in the backpack you carry, or a meth pipe in the jacket pocket, you are in actual possession. The prosecution’s work is easier in these cases since they have first-hand evidence that the item was in your possession.
Constructive Possession
Constructive possession is where the law becomes more subtle, and numerous defenses emerge. You may be in constructive possession of an item even when it is not on your person. To demonstrate this, the prosecutor must show two things:
- Knowledge — You were aware of the item’s presence
- Dominion and control — You possessed dominion and control over the item, which means you could access, use, or manage it, even when you did not physically have it.
Here are some typical examples of constructive possession:
- In your car — An officer stops you and notes a glass pipe in the center console or glove compartment. Although it was not in your possession, it is an area you can control and easily access, so a prosecutor can argue that you were in constructive possession.
- In your house — The police could find a scale and plastic baggies in your bedroom closet. Since you are the occupant of that room, it is assumed that you know what is in it and have control over it, which amounts to constructive possession.
The critical distinction is that merely being in the vicinity of an item is not sufficient. You should have known about its existence and how you could have exercised control. For example, when you are just a passenger in another person’s car and an officer finds the paraphernalia in the trunk, you can argue that you were not aware of its existence and could not have controlled it, thereby negating constructive possession.
Joint Possession
Joint possession is when two or more individuals have control over something. Joint possession may be actual or constructive, for example, when you and a roommate share a bong, which is placed on a coffee table in your shared living room, the two of you may be charged with joint constructive possession. Although one of you may be the only owner of the item, you will both be held responsible if you both knew and had the capacity to exercise control over the item.
Punishment Following an HS 11364 Conviction
Although a conviction of possession of drug paraphernalia under Health and Safety Code 11364 is a misdemeanor, the penalties associated with this offense extend beyond a fine. A conviction can have a long-term effect on several areas of your life.
Criminal Penalties
The direct criminal consequences of an HS 11364 conviction include the following:
- A maximum of six (6) months in a county jail
- A fine of up to $1,000
Probation and Alternative Sentencing
In most instances, particularly in a first offense, a judge can place you under informal or summary probation, rather than jail. The conditions of probation may be stringent and usually involve:
- Drug counseling or a drug rehabilitation program
- Routine or random drug testing
- Community service or a work release program
- A requirement for you to obey all laws during the probationary period
You could qualify to participate in a drug diversion program found in Penal Code 1000. These programs provide a substitute for traditional sentencing. The court will dismiss the charge by pleading guilty or no contest and completing the program, which generally consists of a treatment and supervision period. You will then avoid a criminal conviction on your record. However, if you do not complete the program, the judge can sentence you to the original jail sentence.
California Drug Diversion Programs
California has long understood that a punitive and incarceration attitude towards non-violent drug crimes is often counter-productive. Drug diversion programs are an avenue offered by the state to many first-time offenders to avoid a criminal conviction altogether. These programs are geared towards rehabilitation instead of punishment, and provide an opportunity for a fresh start.
The best and most preferred alternative to a drug paraphernalia charge is a deferred entry of judgment under the California Penal Code 1000. This is a pretrial program, which is conducted before you are ever convicted. The process works as follows:
- Eligibility — To be eligible, you must have been charged with a non-violent simple drug possession charge, like possession of drug paraphernalia. You should also not have had any prior convictions on a drug-related offense within five years, and any prior felony convictions during the
- The plea — If the judge finds you eligible, you will plead not guilty, and the judge will defer or postpone the case. No conviction is made, and no judgment is entered. You are instead put under a court-supervised program. You have to do a court-approved drug education and/or treatment program. This is usually done in 12 to 18 months, and it may involve counseling, group therapy, and regular drug tests.
- Dismissal — At the end of the program, the judge will dismiss the charges against you if you have completed all program requirements. This record can be sealed, and the case is considered not to have happened. It is a significant benefit because it does not leave you with a criminal conviction. You can now honestly answer on employment and housing applications that you have not been convicted of this offense.
The advantage of the PC 1000 program is that it directly focuses on the underlying issue of substance abuse and, most importantly, offers a definite way of avoiding a criminal record.
Defenses You Can Use in a Drug Paraphernalia Charge
Being accused of possessing drug paraphernalia is a serious offense that has dire consequences if convicted. Nevertheless, a charge does not always translate to a conviction since you can use several legal defenses to challenge the charges. Your defense attorney could choose any of the following defenses based on the facts of your case. The right defense strategy would result in the best legal outcome.
Lack of Intent or Knowledge
You can challenge the required element of intent. You can argue that there was a legal use of the item or that you were unaware of the item’s presence, thereby refuting the intent element. This defense is especially effective since many objects that police would define as drug paraphernalia can also be used in non-drug-related applications. For example:
- You could have a small digital scale to measure food portions or weigh jewelry, rather than use it to weigh illicit drugs
- A glass pipe may be used to smoke legal tobacco
By providing evidence of the lawful purpose of the item, you directly refute the prosecutor’s argument about the criminal intent.
Your defense attorney could also claim that you were just unaware of the existence of the item and its illegal use. In case a friend left a pipe in your car without your knowledge, a prosecutor cannot show that you had the necessary intent to use it, since you were unaware of its presence.
This defense shifts the focus off the item and puts it on what you knew about it and what you were planning to do with it.
Unlawful Search and Seizure (Violation of the Fourth Amendment)
If the evidence against you was obtained through an illegal search and seizure, your lawyer can file a Penal Code 1538.5 motion to suppress that evidence to have the evidence excluded before the court. This strong defense can, in most cases, result in a dismissal of the whole case since the prosecution may have no other remaining evidence to proceed. This motion protects your Fourth Amendment rights to be free of unreasonable searches and seizures.
A successful motion would claim that the police:
- Did not have a legitimate reason to conduct a traffic stop
- Searched without a warrant or probable cause
- Exceeded the warrant’s scope
When a judge finds that your constitutional rights have been infringed, the obtained evidence and any other evidence obtained due to the illegal one (the fruit of the poisonous tree) is inadmissible. This could be critical evidence to support the prosecution’s case against you. Without it, the prosecution may find its case against you collapses completely, leading to the dismissal of the charges against you.
Questioning the Chain of Custody
A key defense strategy in any drug-related case does not rely on the defendant’s innocence, but on the credibility of the evidence collected by the prosecution. This defense focuses on proving that the prosecution cannot show that the substance, paraphernalia, or residue they present to the court is the same evidence found initially on you. This strict legal necessity is referred to as demonstrating a proper chain of custody.
The chain of custody is basically a detailed and unbroken chain of documentation that documents the journey of the evidence from when it was seized to the courtroom. It keeps track of all the steps:
- Who handled the evidence
- Where it was stored
- How it was packaged
- How was it transferred to the laboratory for forensic analysis
This approach ensures that no one has tampered with the evidence, switched it, or contaminated it.
If your defense lawyer can show that this documentation has gaps or inconsistencies, like missing signatures, unexplained delays in time, improper storage, errors in the transfer log, he/she can argue that the chain of custody is compromised. Once the chain of evidence is breached, the evidence can no longer be considered reliable and admissible in a court of law. This motion can be highly effective, especially when the primary evidence against you is drug paraphernalia with only traces of a drug residue. Without irrefutable proof linking you to a controlled substance, it may make it difficult for the prosecution to prove its case, and a dismissal of the case is likely. This strategy underscores the value of an experienced defense attorney who looks into the facts of the arrest and its documentation.
Find a Criminal Defense Attorney Near Me
A drug paraphernalia offense is not a minor inconvenience. It is a criminal offense with long-term implications that can affect your career, housing, and personal life. The legal system is complex and unforgiving, and the responsibility to fight the possession of drug paraphernalia charges, the prosecution has preferred lies solely on you. You will likely be convicted without proper legal advice, which could affect our future.
Do not let a mistake define your future. Contact CCLG: Los Angeles Criminal Attorney today for a confidential consultation. We will carefully analyze the facts of your case and use the best defenses available to defend your rights. Take the first step toward a positive outcome and let us help you build a strong defense. Call us at 323-922-3418.
