Health & Safety Code 11364(a) HS is the California statute that makes it illegal to possess drug paraphernalia. This applies to any device, instrument or paraphernalia used for unlawfully injecting, smoking or otherwise consuming a controlled substance.
Consequences of a conviction
Illegal possession of drug paraphernalia in violation of Health & Safety Code 11364 HS is a misdemeanor.
Penalties for violating California’s possession of drug paraphernalia law can include six months in jail, and/or a fine of up to $1,000.
There are additional consequences of a 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 myself against these charges?
Common defenses to criminal charges of HS 11364 drug paraphernalia possession include:
- What the police found wasn’t drug paraphernalia,
- The paraphernalia wasn’t yours,
- You didn’t know that the item was drug paraphernalia, and
- The police discovered the paraphernalia during an illegal search or seizure.
Below, our California criminal defense attorneys address the following:
- 1. When is drug paraphernalia illegal in California?
- 2. How can I fight an 11364 HS charge?
- 3. What are the penalties if I’m convicted?
- 4. Related Offenses
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
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”.1
There is one major exception to California’s law against possession drug paraphernalia. Until 2021, it is legal to possess hypodermic needles or syringes IF:
- They are solely for your own personal use, and
- You acquired them from a physician, pharmacist, needle or syringe exchange program, or any other source authorized by law to provide sterile syringes or needles without a prescription.
This exception is a public measure designed to prevent the transmission of HIV and other bloodborne diseases among those who use heroin and other injectable drugs.2
Example: Steve is a heroin user concerned about the possibility of acquiring HIV from used needles. As a result, he regularly visits an authorized source for a needle exchange for free clean needles.
If Steve is caught with heroin in his possession, he could be charged with simple possession of a controlled substance under HS 11350. But if he is caught with needles he got from the exchange in his possession, he will NOT face charges for possession of drug paraphernalia.
In order to convict you of illegal possession of drug paraphernalia, the prosecutor must prove the following three facts (otherwise known as “elements” of the offense):
- You exercised control over–or had constructive possession over–drug paraphernalia;
- You knew of the paraphernalia’s presence; and
- You knew it was drug paraphernalia.3
Let’s take a closer look at some of these terms to gain a better understanding of the legal definition of possession of drug paraphernalia under Health & Safety Code 11364 HS.
Under Health & Safety Code 11364 HS, “control” may be actual or constructive.
You actively control something when you physically carry it on your person. For example, you actively control a pipe for smoking crack cocaine 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 pipe 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 pipe that you and your wife share which is at home in the bathroom).4
Example: Tina and her boyfriend are both crack cocaine smokers. When Tina’s boyfriend moves in with her, he brings several crack pipes with him. Tina uses them regularly as well.
If police search the apartment when Tina is not home, and find the crack pipes, she could be charged with possession of drug paraphernalia under HS 11364. This is because she had constructive joint control of the pipes.
The term “paraphernalia” under California’s possession of drug paraphernalia law 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) pipes, and miniature cocaine spoons.6
Excluded from this list, at least until 2021 are hypodermic needles and syringes where both of the following are true:
- They are solely for your own personal use, and
- You acquired them from a physician, pharmacist, needle or syringe exchange program, or any other source authorized by law to provide sterile syringes or needles without a prescription.7
Similarly, items that are more often associated with the manufacture and sale of drugs are not covered under HS 11364. That includes things like
- 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,
This is because possession of items associated with drug manufacture or sale is usually punished under 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–rather than under HS 11364, California’s possession of drug paraphernalia law.
Controlled substances and narcotic drugs
Under Health and Safety Code 11364 HS, “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
Some of the most commonly used controlled substances and narcotics within these categories include:
- cocaine, and
Marijuana is specifically excluded from California’s possession of drug paraphernalia law. Drug offenses involving marijuana paraphernalia are regulated separately under California’s marijuana laws. Under Proposition 64, California’s marijuana legalization law, most personal use of recreational marijuana is no longer illegal.11
People exempt from prosecution
There are certain people who are exempt from prosecution under HS 11364, 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 possession of drug paraphernalia charges 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 drug offense.
Example: Police obtain a California search warrant to search Miguel’s apartment for evidence of his involvement in a recent theft crime. The police find a “crack pipe” in Miguel’s kitchen.
But the pipe belongs to Miguel’s roommate Charlie, and only Charlie has ever used it. Even though it is in Miguel’s home, he is not in actual possession of it, nor does he have the right to control it.
As a result, Miguel 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.
For you to be guilty of HS 11364 possession of drug paraphernalia, 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 violating California’s drug paraphernalia possession law.
Clearly, this defense against HS 11364 charges works best for those individuals who do not have a criminal history–especially a criminal drug history.
As Oakland criminal defense attorney Neil Shouse13 explains,
“In order to determine whether you know an object is “drug paraphernalia”, the court will consider any prior drug-related convictions, your statements 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 HS 11364 possession of drug paraphernalia.
There is an infinite number of instances where this defense to possession of drug paraphernalia charges could be applicable. Someone borrowed your jacket and left a pipe in the pocket. Someone left his cocaine spoon 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 Karina over for speeding. Without any justifiable reason for doing so, they have her exit the car so that they can conduct a search. They find a cocaine pipe under her seat and charge her with HS 11364.
Because the paraphernalia was discovered during an illegal search, Karina’s California criminal defense lawyer should prevail on a Penal Code 1538.5 PC motion to suppress evidence—which, in turn, should lead to a dismissal of the charges.
Possessing drug paraphernalia is a misdemeanor. The potential penalties are:
- up to six (6) months of county jail time, and/or
- 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. 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).
Note that the L.A. County D.A.’s office generally does not prosecute HS 11364 cases.16
Some people convicted of California’s possession of drug paraphernalia law will be eligible for alternative sentencing known as a drug diversion program.
Drug rehabilitation is offered in lieu of jail to those who have committed non-violent, drug possession and drug use offenses, including HS 11364. 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 drug paraphernalia possession charges.
As a condition of your probation, the judge orders you to complete drug rehabilitation. You will likely be subject to drug testing as a condition of your probation as well.
If you complete your probation and drug treatment successfully, the judge dismisses your drug paraphernalia possession charge. If you do not, the judge has the discretion to order you to serve a jail sentence.18
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 drug diversion.20
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
Another California drug paraphernalia law, similar to HS 11364, is Health and Safety Code 11364.7 HS. This law 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 HS 11364.7 (a more serious offense than paraphernalia possession under HS 11364) 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 Health and Safety Code 11364 HS possession of drug 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 a loved one is charged with Health and Safety Code 11364 HS possession of 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. Our goal is to achieve the best outcome possible and keep your criminal record clear.
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.
- California 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.
- California Health and Safety Code 11364 HS – California’s possession of paraphernalia law. (“(c) Until January 1, 2021, as a public health measure intended to prevent the transmission of HIV, viral hepatitis, and other bloodborne diseases among persons who use syringes and hypodermic needles, and to prevent subsequent infection of sexual partners, newborn children, or other persons, this section shall not apply to the possession solely for personal use of hypodermic needles or syringes if acquired from a physician, pharmacist, hypodermic needle and syringe exchange program, or any other source that is authorized by law to provide sterile syringes or hypodermic needles without a prescription.”)
- California Jury Instructions, Criminal (CALCRIM 2410) — California’s possession of paraphernalia law.
- See same.
- California Health and Safety Code 11364 HS – California’s possession of paraphernalia law, endnote 1 above.
- California 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.”)
- California Health and Safety Code 11364 HS – California’s possession of paraphernalia law, endnote 1 above.
- See In re Johnny O. (2003), endnote 6, above.
- California Health and Safety Code 11007 HS– Controlled substance. See also California Health and Safety Code 11019 HS — Narcotic drugs.
- While drugs such as Health and Safety Code 11377 HS methamphetamines, heroin, cocaine, and PCP have always been among the most popular controlled substances, as that term is used in California’s possession of paraphernalia law (HS 11364), 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.
- In re Johnny O. (2003) at 896-897, endnote 6, above. See also the full text of Proposition 64 (Adult Use of Marijuana Act).
- California Health and Safety Code 11367 HS — Immunity from prosecution [under HS 11364, California’s drug paraphernalia possession law]. See also California Health and Safety Code 11364.5 HS, endnote 6, above.
- Oakland criminal defense attorney y Neil Shouse is the founder and Managing Attorney of Shouse Law Group. He served five years in the Los Angeles County District Attorney’s office, prosecuting more than 60 criminal trials with an astonishing 96% success rate in felony jury trials to verdict. Now, Mr. Shouse assists defendants accused of a range of California crimes, including drug crimes such as HS 11364 paraphernalia possession.
- California Health and Safety Code 11364.5, endnote 6, above.
- 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 [including possession of drug paraphernalia under HS 11364] 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.”)
- California Education Code 44940 — Leave of absence; LADA Special Directive 20-07.
- California’s Proposition 36 The Substance Abuse and Crime Prevention Act of 2000. See also California Penal Code 1000 PC.
- See same.
- People v. Canty (2004) 32 Cal.4th 1266, 1281.
- See endnote 17, above.
- California Health and Safety Code 11364.5 HS, endnote 6, above.
- California 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 same.
- See same. See also California Penal Code 672 PC — Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
- Health & Safety Code 11365 HS — Being present for illegal controlled substance use.