California Health and Safety Code 11364 -- Possession of Drug Paraphernalia
What is drug paraphernalia?
California HS 11364 defines drug paraphernalia as "an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance." Common items of drug paraphernalia include (but are not limited to):
- meth pipes,
- coke spoons, and
- hypodermic needles.
Consequences of HS 11364 possession of drug paraphernalia
Violation of Health and Safety Code 11364 is a misdemeanor. Penalties can include six months in jail and/or a fine of up to $1,000.
There are additional consequences of a 11364 HS conviction for people who hold professional licenses--lawyers, teachers, contractors, real estate agents, etc. Repercussions of a drug paraphernalia conviction for such professionals can include suspension of their professional license.
How do I defend 11364 HS charges?
Common defenses to HS 11364 drug pharaphernalia possession include, but are not limited to:
- What the police found wasn't drug paraphernalia,
- The crack pipe wasn't yours,
- You didn't know it was drug paraphernalia,
- The police discovered the paraphernalia during an illegal search.
How do I find the best California drug lawyer?
We are a California law firm whose attorneys include former cops and prosecutors. Now we are devoted exclusively to protecting your rights.
We know the most effective ways to fight California drug charges. If you or someone you know has been charged with HS 11364 possession of drug paraphernalia, we can help.
Contact us today for a free telephone or in-person consultation. You may also wish to read the following article, in which our California criminal defense attorneys1 address:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Drug Offenses; Proposition 36 Drug Rehabilitation; Penal Code 1000 PC Drug Diversion otherwise known as Deferred Entry of Judgment; California's Marijuana Laws; California Legal Defenses; California Search Warrants; Illegal Search and Seizures; Penal Code 1538.5 Motions to Suppress Evidence; How Convictions and Arrests Affect California Professional Licenses; California Probation Laws; and Health & Safety Code 11365 HS Being Present for Illegal Drug Use.
Health and Safety Code 11364 HS California's "possession of drug paraphernalia" law prohibits possessing "an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance".2
In order to convict you of this offense, the prosecutor must prove the following three facts (otherwise known as "elements" of the offense):
- that you exercised control over...or had the right to control...drug paraphernalia,
- that you knew of the paraphernalia's presence, and
- that you knew it was drug paraphernalia.3
Let's take a closer look at some of these terms to gain a better understanding of their legal definitions.
"Control" may be actual or constructive. You actively control something when you physically carry it on your person. For example, you actively control a hypodermic needle when you carry it in your pocket. You constructively control something when you either
- exercise control over that item (for example, you constructively possess the needle that you own and left on your bedroom dresser), or
- have the right to exercise control over that item either individually or with another person (for example, you constructively possess the needle that you and your wife share which is at home in the bathroom).4
The term "paraphernalia" refers to a variety of items that are used for illegally injecting, smoking, or otherwise consuming controlled substances or narcotic drugs.5
Under this section, examples of drug paraphernalia include (but are not limited to):
- hypodermic needles or syringes used to directly inject controlled substances into the body,
- pipes, and
- miniature cocaine spoons.6
Excluded from this list are hypodermic needles and syringes that you are legally authorized to possess, which means that you
- possess them for personal use,
- received them from an authorized source (that is, that they were prescribed by a doctor in conjunction with a lawful drug), and
- possess no more than ten at a time.7
Similarly, although we recognize that
- scales and balances used to measure and weigh drugs,
- blenders, bowls, spoons, and other mixing devices used to compound controlled substances, and
- capsules, balloons, and other containers used to conceal or package drugs,
are also common types of paraphernalia, they are not the types of drug paraphernalia that are covered under HS 11364. This is because these types of paraphernalia are used for manufacturing, compounding, and selling drugs...which are prosecuted under more serious laws such as
- Health and Safety Code 11351 HS California's "drug possession for sale" law, or
- Health and Safety Code 11352 HS California's transporting or selling a controlled substance" law
Controlled substances and narcotic drugs
"Controlled substances" or "narcotic drugs" are simply terms that are used to describe a class of specific drugs and drug-like substances. In general, these include
- hallucinogens, and
Specific drugs within these categories are listed in California Health and Safety Code sections 11054-11058 HS and in Health and Safety Code 11019 HS.9 Some of the most commonly used controlled substances and narcotics include (but are not limited to):
- Health and Safety Code 11377 HS methamphetamines,
- cocaine, and
Marijuana is specifically excluded from this law. Drug offenses involving marijuana paraphernalia are regulated separately under California's marijuana laws.11
People exempt from prosecution
There are certain people who are exempt from prosecution under California's possession of paraphernalia law. These include
- police officers or anyone working under their immediate direction or supervision, and
- pharmacists, doctors, dentists, podiatrists, veterinarians, as well as
- manufacturers, wholesalers, and retailers
who are licensed by the California State Board of Pharmacy and prescribe, sell, or transfer hypodermic syringes, needles, or other objects intended for use to inject drugs into the body.12
The good news is that there are a variety of legal defenses to Health and Safety Code 11364 HS that a skilled California criminal defense lawyer can present on your behalf. Below are examples of some of the most common.
You didn't have control over the paraphernalia
If you didn't have control over the paraphernalia, then you shouldn't be convicted of this California drug offense.
Example: While searching your apartment pursuant to a California search warrant, the police find a "crack pipe" in your kitchen. The pipe exclusively belongs to your roommate. Even though it is in your home, you are not in actual possession of it, nor do you have the right to control it. As a result, you should be acquitted of a possession of paraphernalia charge.
The object wasn't paraphernalia
Just because the object looks like something that can be used to inject or consume illegal drugs, doesn't necessarily mean that it actually is. Maybe it's a tool that you use to administer prescription drugs to your sick or injured animal. Maybe it's a pipe that you use to smoke tobacco.
In order to be convicted of this offense, the prosecutor must prove that you possess drug paraphernalia...other objects do not satisfy this criteria.
You didn't know the object was paraphernalia
Even if the police do find drug paraphernalia in your possession, if you didn't know it was paraphernalia, you aren't guilty of this crime. Clearly, this defense works best for those individuals who do not have a criminal history...especially a criminal drug history.
As Oakland criminal defense attorney Jim Hammer13 explains, "In order to determine whether an object is "drug paraphernalia", the court will consider any prior drug-related convictions, statements by the owner of the object concerning its use, expert testimony concerning the object's use, and how the object was displayed for sale."14
You didn't know about the paraphernalia's presence
Again, let's say that the police do find you in possession of paraphernalia. If you didn't know you possessed it, you should be acquitted of this offense.
There are an infinite number of instances where this defense could be applicable. Someone borrowed your jacket and left a pipe in the pocket. Someone left his needle in your car under the passenger seat. Someone placed a vial in your purse to avoid being caught himself.
The paraphernalia was discovered during an illegal search and seizure
Oftentimes, drug paraphernalia is discovered during the course of an illegal search and seizure.
Example: The police pull you over for speeding. Without any justifiable reason for doing so, they have you exit the car so that they can conduct a search. They find a cocaine pipe under your seat and the District Attorney charges you with HS 11364.
Because the paraphernalia was discovered during an illegal search, your California criminal defense lawyer should prevail on a Penal Code 1538.5 motion to suppress evidence which, in turn, should lead to a dismissal of the charges.
Possessing drug paraphernalia is a misdemeanor, punishable by up to six months in a county jail and a maximum $1,000 fine.15
In addition, a conviction for Health and Safety Code 11364 HS...or for that matter, even an arrest for this section...could lead to professional repercussions for those who hold professional licenses.
This is because convictions and even arrests can affect California professional licenses. For example, teachers who are accused of violating this law may be placed on an immediate leave of absence pending the resolution of the charge(s).16
Alternative sentencing / drug diversion
Some people convicted of California's possession of drug paraphernalia law will be eligible for alternative sentencing known as drug diversion.
Drug rehabilitation is offered in lieu of jail to those who have committed non-violent, drug possession and drug use offenses. This type of alternative sentence is available under California Proposition 36 and under Penal Code 1000 PC California's drug diversion or "deferred entry of judgment" program.17
When you participate in drug diversion, you enter a guilty plea or a nolo contendere plea (more commonly referred to as "no contest") to the applicable charge(s). As a condition of probation, the judge orders you to complete drug rehabilitation. If you do so, the judge dismisses your charge. If you do not, the judge has the discretion to order you to serve a jail sentence.18
These programs are designed to allow drug addicts the opportunity to participate in rehabilitation so that they avoid future criminal activity. However...
If you are simultaneously convicted of California Health and Safety Code 11364 HS and
- a separate misdemeanor offense that doesn't involve simple possession or drug use (which includes driving under the influence of drugs),19 or
- a felony,
you will be disqualified from participating in this program.20 Similarly, if you are convicted for violating
- Health and Safety Code 11351 HS California's "drug possession for sale" law, or
- Health and Safety Code 11352 HS California's transporting or selling a controlled substance" law,
you will not be entitled to participate in a diversion program.
The reason is that diversion is reserved exclusively for those persons who need help with their personal addiction issues. Selling drugs is thought to be more criminal in nature. As a result, the state punishes such behavior instead of offering rehabilitation services.
If you do qualify for a drug diversion program, you will be subject to drug testing as a condition of your probation under California's probation laws.
Health and Safety Code 11364 HS California's "possession of drug paraphernalia" law is closely related to a couple of other California drug offenses.
Health and Safety Code 11364.5 HS
Health and Safety Code 11364.5 HS prohibits operating a business where drug paraphernalia is stored, displayed, or sold for use with legal substances except when it is kept in a room that is inaccessible to minors (that is, persons under 18) who are not accompanied by a parent.
If guilty of this offense, the owner does not face criminal penalties but stands to lose his/her California business license or permit. Additionally, any drug paraphernalia will be seized by and forfeited to the state.22
Health and Safety Code 11364.7 HS
Health and Safety Code 11364.7 HS prohibits people from possessing, furnishing, transporting, or manufacturing drug paraphernalia when they know or reasonably should know that the paraphernalia will be used in connection with illegal drug use or sales.23
This section additionally punishes adults who
- furnish minors with paraphernalia, or
- possess hypodermic needles on school grounds intending (or knowing) that a minor will use the needles to inject illegal drugs.24
Depending on the exact violation, violations of this section may be charged as either
- a misdemeanor (subjecting the accused to up to one year in a county jail and a maximum $1,000 fine), or
- a felony (punishable by 16 months, or two or three years in the California state prison and a maximum $10,000 fine).25
Health and Safety Code 11365 HS
Health and Safety Code 11365 HS makes it a crime to be present while someone else is using controlled substances and to aid and abet his/her controlled substance use.26
This misdemeanor offense carries a potential jail sentence of up to six (6) months.27 It may be charged along with possession of paraphernalia if, for example, you are found in possession of paraphernalia that is being used or about to be used by someone else.
Call us for help...
If you or loved one is charged with Health and Safety Code 11364 HS drug paraphernalia and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada drug crime defense attorneys are available to answer any questions relating to Nevada's drug paraphernalia laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.28
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2California Health and Safety Code 11364 HS - California's possession of paraphernalia law. ("(a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V.")
See also People v. Chambers (1989) 209 Cal.App.3d Supp. 1, 4.
3California Jury Instructions, Criminal (CALJIC 16.040) -- California's possession of paraphernalia law.
5California Health and Safety Code 11364 HS, endnote 2.
6California Health and Safety Code 11364.5 HS -- Drug paraphernalia. ("(d) As used in this section, "drug paraphernalia" means all equipment, products, and materials of any kind which are intended for use or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. "Drug paraphernalia" includes, but is not limited to, all of the following: (1) Kits intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived. (2) Kits intended for use or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances. (3) Isomerization devices intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance. (4) Testing equipment intended for use or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances. (5) Scales and balances intended for use or designed for use in weighing or measuring controlled substances. (6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, intended for use or designed for use in cutting controlled substances. (7) Separation gins and sifters intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana. (8) Blenders, bowls, containers, spoons, and mixing devices intended for use or designed for use in compounding controlled substances. (9) Capsules, balloons, envelopes, and other containers intended for use or designed for use in packaging small quantities of controlled substances. (10) Containers and other objects intended for use or designed for use in storing or concealing controlled substances. (11) Hypodermic syringes, needles, and other objects intended for use or designed for use in parenterally injecting controlled substances into the human body. (12) Objects intended for use or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as the following: (A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls. (B) Water pipes. (C) Carburetion tubes and devices. (D) Smoking and carburetion masks. (E) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand. (F) Miniature cocaine spoons, and cocaine vials. (G) Chamber pipes. (H) Carburetor pipes. (I) Electric pipes. (J) Air-driven pipes. (K) Chillums. (L) Bongs. (M) Ice pipes or chillers.")
See also In re Johnny O. (2003) 107 Cal.App.4th 888, 895. ("Section 11364.5, however, defines "drug paraphernalia" only "[a]s used in this section." (11364.5, subd. (d).) Moreover, section 11364 [California's possession of drug paraphernalia law] does not use the words "drug paraphernalia." It does use the word "paraphernalia"; however, it makes the possession of paraphernalia illegal if, and only if, it is used for unlawfully injecting or smoking specified controlled substances. Section 11364.5, by contrast, broadly encompasses articles "intended for use or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance." (11364.5, subd. (d).) Thus, it specifically extends to any number of articles that are not covered under section 11364, such as testing equipment, scales and balances, cutting agents, sifters, blenders, bowls, spoons, balloons and envelopes. (11364.5, subds.(d)(4), (d)(5), (d)(6), (d)(7), (d)(8), (d)(9).) Moreover, unlike section 11364, it specifically extends to articles used for smoking or injecting any controlled substance. Accordingly, it is of no use in the interpretation of section 11364.")
7Judicial Council Of California Criminal Jury Instruction (CALCRIM 2410) -- Possession of paraphernalia.
8See In re Johnny O. (2003), endnote 6, above.
9California Health and Safety Code 11007 HS -- Controlled substance.
See also California Health and Safety Code 11019 HS -- Narcotic drugs.
10While drugs such as Health and Safety Code 11377 HS methamphetamines, heroin, cocaine, and PCP have always been among the most popular controlled substances, these are by no means exclusive. For an exhaustive list, see California Health and Safety Code sections 11054-11058 HS and Health and Safety Code 11019 HS.
11In re Johnny O. (2003) at 896-897, endnote 6, above.
12California Health and Safety Code 11367 HS -- Immunity from prosecution.
See also California Health and Safety Code 11364.5 HS, endnote 6, above.
13Oakland criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients throughout the Bay Area, including San Francisco, Berkeley, Marin County, and San Jose.
14California Health and Safety Code 11364.5, endnote 6, above.
15California Penal Code 17 PC -- Felony; misdemeanor; infraction; classification of offenses. ("(a) A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.")
See also California Penal Code 19 PC -- Punishment for misdemeanor; punishment not otherwise prescribed. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")
16California Education Code 44940 -- Leave of absence.
See also California Penal Code 1000 PC.
19People v. Canty (2004) 32 Cal.4th 1266, 1281.
20See endnote 17, above.
22California Health and Safety Code 11364.5 HS, endnote 6, above.
23California Health and Safety Code 11364.7 HS -- Delivering, furnishing, transferring, possessing or manufacture with intent to deliver, furnish, transfer or manufacture drug paraphernalia; penalties and punishment.
See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
26Health & Safety Code 11365 HS -- Being present for illegal controlled substance use [may be charged along with possession of drug paraphernalia].
28Please feel free to contact our Nevada drug crime defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's drug laws. Their Nevada law offices are located in Reno and Las Vegas.