Charged with possession of drug paraphernalia under Health & Safety Code 11364 HS? We can help. As a law firm comprised of former cops and prosecutors...now devoted exclusively to protecting your rights...we know the most effective ways to fight California drug charges.
Below, our California criminal defense attorneys1 address the following:
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. (""Health and Safety Code section 11364 [California's possession of paraphernalia law] and its predecessor, section 11555, since its amendment in 1953, have used the language 'any device, contrivance, instrument or paraphernalia used for unlawfully injecting or smoking' a controlled substance or narcotic. (Italics added.) The statute penalizes possession of the listed items when used for the proscribed purposes, ... [and] has been the subject of prosecutions and has been upheld by implication in numerous appellate court opinions. (Citations omitted.)" ( Music Plus Four, Inc. v. Barnet (1980) 114 Cal.App.3d. 113, 126-129, 170 Cal.Rptr. 419.) The statute undoubtedly gives "the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." ( Grayned v. City of Rockford (1972) 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222.) The plain words of the statute "provide clear lines by which citizens, law enforcement officials, judges and juries can understand what is prohibited and what is not." ( People v. Mirmirani (1981) 30 Cal.3d 375, 384, 178 Cal.Rptr. 792, 636 P.2d 1130.)")
3California Jury Instructions, Criminal (CALJIC 16.040) -- California's possession of paraphernalia law. ("In order to prove this crime, each of the following elements must be proved: The defendant exercised control over or the right to control any opium pipe or any device, contrivance, instrument or paraphernalia used for unlawfully injecting or smoking a controlled substance;  The defendant knew of its presence; and  The defendant knew that it was an opium pipe or a device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance.")
4See same. ("There are two kinds of possession: actual possession and constructive possession. "Actual possession" requires that a person knowingly exercise direct physical control over a thing. "Constructive possession" does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. One person may have possession alone, or two or more persons together may share actual or constructive possession.")
5California Health and Safety Code 11364 HS - California's possession of paraphernalia law, endnote 2, above. ("(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. (b) This section shall not apply to hypodermic needles or syringes that have been containerized for safe disposal in a container that meets state and federal standards for disposal of sharps waste. (c) Pursuant to authorization by a county, with respect to all of the territory within the county, or a city, with respect to the territory within in the city, for the period commencing January 1, 2005, and ending December 31, 2010, subdivision (a) shall not apply to the possession solely for personal use of 10 or fewer hypodermic needles or syringes if acquired from an authorized source.")
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. ("[The defendant did not unlawfully possess [a] hypodermic (needle[s]/ [or] syringe[s]) if (he/she) was legally authorized to possess (it/them). The defendant was legally authorized to possess (it/them) if:  (He/She) possessed the (needle[s]/ [or] syringe[s]) for personal use; [AND]  (He/She) obtained (it/them) from an authorized source(;/.) [AND  (He/She) possessed no more than 10 (needles/ [or] syringes).]")
8See In re Johnny O. (2003), endnote 6, above.
9California Health and Safety Code 11007 HS -- Controlled substance. (""Controlled substance," unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058.")
See also California Health and Safety Code 11019 HS -- Narcotic drugs. (""Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: (a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate. (b) Any salt, compound, isomer, or derivative, whether natural or synthetic, of the substances referred to in subdivision (a), but not including the isoquinoline alkaloids of opium. (c) Opium poppy and poppy straw. (d) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine. (e) Cocaine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof. (f) Ecgonine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof. (g) Acetylfentanyl, the thiophene analog thereof, derivatives of either, and any salt, compound, isomer, or preparation of acetylfentanyl or the thiophene analog thereof.")
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. ("In 1975, however, the Legislature amended section 11364 [California's possession of drug paraphernalia law] by deleting the reference to section 11054, subdivision (d)(10)-i.e., to marijuana. (Stats.1975, ch. 248, � 6, p. 645.)...In light of this overall agenda, it seems incontrovertible that the Legislature intended to make it legal to possess a device for smoking marijuana...Finally, in 1984, the Legislature repealed and reenacted section 11054. In the process, it changed the unqualified word "tetrahydrocannabinol" to the present wording, which, as we have already discussed, limits it to synthetic substances. (Stats.1984, ch. 1635, �� 44, 44.5, pp. 5844, 5845.) It thereby eliminated the last remaining argument for construing section 11364 as prohibiting the possession of a device for smoking marijuana. (Cf. State v. Derenne (1981) 102 Wis.2d 38, 45-47 [306 N.W.2d 12].)")
12California Health and Safety Code 11367 HS -- Immunity from prosecution. ("All duly authorized peace officers, while investigating violations of this division in performance of their official duties, and any person working under their immediate direction, supervision or instruction, are immune from prosecution under this division.")
See also California Health and Safety Code 11364.5 HS, endnote 6, above. ("(f) This section shall not apply to any of the following: (1) Any pharmacist or other authorized person who sells or furnishes drug paraphernalia described in paragraph (11) of subdivision (d) upon the prescription of a physician, dentist, podiatrist or veterinarian. (2) Any physician, dentist, podiatrist or veterinarian who furnishes or prescribes drug paraphernalia described in paragraph (11) of subdivision (d) to his or her patients. (3) Any manufacturer, wholesaler or retailer licensed by the California State Board of Pharmacy to sell or transfer drug paraphernalia described in paragraph (11) of subdivision (d)....[paragraph 11 of subdivision d reads as follows]...(11) Hypodermic syringes, needles, and other objects intended for use or designed for use in parenterally injecting controlled substances into the human body.")
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. ("(e) In determining whether an object is drug paraphernalia, a court or other authority may consider, in addition to all other logically relevant factors, the following: (1) Statements by an owner or by anyone in control of the object concerning its use. (2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance. (3) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he or she knows, or should reasonably know, intend to use the object to facilitate a violation of this section. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this section shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia. (4) Instructions, oral or written, provided with the object concerning its use. (5) Descriptive materials, accompanying the object which explain or depict its use. (6) National and local advertising concerning its use. (7) The manner in which the object is displayed for sale. (8) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products. (9) The existence and scope of legitimate uses for the object in the community. (10) Expert testimony concerning its use.")
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. ("(b) For purposes of this section, "charged with an optional leave of absence offense" is defined to mean a charge by complaint, information, or indictment filed in a court of competent jurisdiction with the commission of any controlled substance offense as defined in Section 44011 or 87011, or a violation or attempted violation of Section 187 of the Penal Code, or Sections 11357 to 11361, inclusive, Section 11363, 11364 [California's possession of drug paraphernalia law], or 11370.1 of the Health and Safety Code [California's possession of paraphernalia law], insofar as these sections relate to any controlled substances except marijuana, mescaline, peyote, or tetrahydrocannabinols....(e)(1) Whenever any certificated employee of a school district is charged with an optional leave of absence offense as defined in subdivision (b), the governing board of the school district may immediately place the employee upon compulsory leave in accordance with the procedure in this section and Section 44940.5. If any certificated employee is charged with an offense deemed to fall into both the mandatory and the optional leave of absence categories, as defined in subdivisions (a) and (b), that offense shall be treated as a mandatory leave of absence offense for purposes of this section. No later than 10 days after receipt of the complaint, information, or indictment described by subdivision (a), the school district shall forward a copy to the Commission on Teacher Credentialing.")
See also California Penal Code 1000 PC.
19People v. Canty (2004) 32 Cal.4th 1266, 1281. ("The purpose and intent expressed in the preamble to these statutes tends to reinforce the conclusion that misdemeanor driving while under the influence of drugs is not an activity similar to the conduct that underlies those misdemeanors that merely involve personal interaction with drugs, described in section 1210, subdivision (d). As explained more fully below, the statutes that prohibit driving while under the influence of drugs contemplate graduated levels of incarceration as well as other restrictions, such as suspension or revocation of a drivers license, and thus do not appear to be "simple" offenses for purposes of the probation and diversion statutes.")
20See endnote 17, above.
21California Penal Code 1000 PC. ("(e) Any defendant who is participating in a program referred to in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urine analysis results shall not be admissible as a basis for any new criminal prosecution or proceeding.")
22California Health and Safety Code 11364.5 HS, endnote 6, above. ("(a) Except as authorized by law, no person shall maintain or operate any place of business in which drug paraphernalia is kept, displayed or offered in any manner, sold, furnished, transferred or given away unless such drug paraphernalia is completely and wholly kept, displayed or offered within a separate room or enclosure to which persons under the age of 18 years not accompanied by a parent or legal guardian are excluded. Each entrance to such a room or enclosure shall be signposted in reasonably visible and legible words to the effect that drug paraphernalia is kept, displayed or offered in such room or enclosure and that minors, unless accompanied by a parent or legal guardian, are excluded. (b) Except as authorized by law, no owner, manager, proprietor or other person in charge of any room or enclosure, within any place of business, in which drug paraphernalia is kept, displayed or offered in any manner, sold, furnished, transferred or given away shall permit or allow any person under the age of 18 years to enter, be in, remain in or visit such room or enclosure unless such minor person is accompanied by one of his or her parents or by his or her legal guardian. (c) Unless authorized by law, no person under the age of 18 years shall enter, be in, remain in or visit any room or enclosure in any place of business in which drug paraphernalia is kept, displayed or offered in any manner, sold, furnished, transferred or given away unless accompanied by one of his or her parents or by his or her legal guardian...(g) Notwithstanding any other provision of law, including Section 11374, violation of this section shall not constitute a criminal offense, but operation of a business in violation of the provisions of this section shall be grounds for revocation or nonrenewal of any license, permit, or other entitlement previously issued by a city, county, or city and county for the privilege of engaging in such business and shall be grounds for denial of any future license, permit, or other entitlement authorizing the conduct of such business or any other business, if the business includes the sale of drug paraphernalia.")
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. ("(a) Except as authorized by law, any person who delivers, furnishes, or transfers, possesses with intent to deliver, furnish, or transfer, or manufactures with the intent to deliver, furnish, or transfer, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance, except as provided in subdivision (b), in violation of this division, is guilty of a misdemeanor. No public entity, its agents, or employees shall be subject to criminal prosecution for distribution of hypodermic needles or syringes to participants in clean needle and syringe exchange projects authorized by the public entity pursuant to Chapter 18 (commencing with Section 121349) of Part 4 of Division 105. (b) Except as authorized by law, any person who manufactures with intent to deliver, furnish, or transfer drug paraphernalia knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body cocaine, cocaine base, heroin, phencyclidine, or methamphetamine in violation of this division shall be punished by imprisonment in a county jail for not more than one year, or in the state prison.")
24See same. ("(c) Except as authorized by law, any person, 18 years of age or over, who violates subdivision (a) by delivering, furnishing, or transferring drug paraphernalia to a person under 18 years of age who is at least three years his or her junior, or who, upon the grounds of a public or private elementary, vocational, junior high, or high school, possesses a hypodermic needle, as defined in paragraph (7) of subdivision (a) of Section 11014.5, with the intent to deliver, furnish, or transfer the hypodermic needle, knowing, or under circumstances where one reasonably should know, that it will be used by a person under 18 years of age to inject into the human body a controlled substance, is guilty of a misdemeanor and shall be punished by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine.")
25See endnotes 23 and 24 above.
See also California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
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.