California Possession of Drug Paraphernalia

possession of drug paraphenalia in california

According to California Health and Safety Code §11364 it is illegal to possess any device, instrument or paraphernalia used for unlawfully injecting or smoking a controlled substance which is considered to be a narcotic drug pursuant the USA government “Controlled Substances Act”.

In order to prove the guilt of the person, the prosecutor should prove the following facts:

  • The defendant unlawfully possessed an object used for unlawfully injecting or smoking a controlled substance
  • The defendant knew of the object’s presence
  • The defendant knew it to be an object used for unlawfully injecting or smoking a controlled substance.

“Drug paraphernalia” includes 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 . Thus, It can be any object or device which is able to be used to

– inhale,
– smoke,
– ingest,
– inject,
– consume

a controlled substance.

It should be mentioned that even everyday household objects can be considered as paraphernalia if they are used in a manner that facilitates illegal drug use.

In terms of this offense the possession can be actual and constructive. If a person knowingly exercises direct physical control over a thing, it is considered to be actual possession. “Constructive possession” poses the requirement that a person knowingly exercise control over or the right to control a thing, either directly or through another person(s). It should be taken into consideration that two or more persons together may exercise actual or constructive possession at the same time.

In California, possession of drug paraphernalia is considered to be a misdemeanor. A person convicted of the commission of the crime can be subjected to:

  • up to a year in county jail
  • a fine up to $1,000.

Nonetheless, it should not be forgotten that a convicted can be eligible for California Drug Diversion Programs. Under California law, we distinguish the following types of alternative sentencing: DEJ, Proposition 36 and Drug Court.

REMEMBER! There is a risk to lose your own business license including the sale of drug paraphernalia, if you have been convicted of a crime defined under California Penal Code §11364.7. In addition, you can get denials for future attempts to obtain it!

The Margarian Law Firm aggressively protects the rights of criminal defendants in California. We will help you to understand the various aspects of your case. We are ready to provide answers to your initial questions concerning drug charges in California for free. Do not hesitate to contact us!

You may file your request online, by telephone or by mail. 818-553-1000

California Health and Safety Code Section 11364 HS

11364. (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 the city, for the period commencing January 1, 2005, and ending December 31, 2018, 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.

(d) This section shall be inoperative until January 1, 2015.

11364.1. (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) 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 30 or fewer 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.

(d) This section shall remain in effect only until January 1, 2015, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2015, deletes or extends that date.

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