According to California Health and Safety Code 11364 (a), possessing drug paraphernalia in California is a crime. According to the law, drug paraphernalia is any “instrument, device you use to inject, smoke or consume controlled substances unlawfully.”
Cocaine spoons and meth pipes are among the most common drug paraphernalia. The court charges possession of drug paraphernalia as a misdemeanor in California. Upon conviction, the judge can sentence you to a maximum jail term of six months or charge you a maximum fine of $1,000 or both. Upon conviction, the board can revoke your professional license if you require a license to operate. The revocation happens if you are a lawyer, doctor, teacher, contractor, or professional who needs a license to practice.
If you or your loved one is facing possession of drugs paraphernalia charges, you need to contact a criminal attorney. At Long Beach Criminal Attorney, we have over 20 years of experience representing clients accused of contravening HS 11364(a). We help you achieve a favorable outcome in your case. Contact us today if you seek a criminal attorney’s help with possession of drug paraphernalia charges.
Understanding What “Paraphernalia” Means According To California Law
According to California law, paraphernalia means any “instrument, device or paraphernalia you use to inject, smoke or consume controlled substances unlawfully.” According to the law, drug paraphernalia includes cocaine spoons and pipes, syringes and needles used for heroin injections, and other similar instruments.
However, California amended the law to exclude needles and syringes as drug paraphernalia if you acquired them for your personal use. Secondly, if you acquired the needles and syringes from a qualified specialist like doctors or pharmacists, you will not be prosecuted for contravening California HS 11364(a). Also, if you acquire the needles from any other authorized entity, you will not be liable for the possession of drug paraphernalia charge.
When Is It Illegal To Possess Drug Paraphernalia In California?
According to the law, it is a crime to possess any drug paraphernalia. You should not possess any instrument, device, or contrivance you can use to inject or smoke illegal drugs. However, a law amendment in 2021 gave an exception to 11364(a) HS. According to the amendment, it is now legal to own the contravene or instrument for personal use. You can also possess the needles and syringes if you obtain them from an authorized source or an exchange program.
The purpose of the provision is to prevent the spread of diseases, like HIV, that are transmitted through blood. It is an initiative to control the spread of bloodborne diseases, especially among heroin users who use needles to inject the drug.
For example, Christine is a known heroin addict. However, she is concerned that she will contract HIV from sharing needles. Therefore, she visits a licensed pharmacist who is authorized to issue needles. If the police apprehend Catherine with heroin, they can charge her with possession of an illegal drug, which is a criminal act. However, the authorities cannot charge her for contravening HS 11364(a) since she obtained the needles from a licensed medical practitioner.
Items Not Covered Under HS 11364(A)
However, HS 11364(a) does not cover some accessories used in processing the drugs. These items include any measuring instruments like balances, weights, and scales. The law does not also cover any mixing instruments, including bowls and blenders. HS 11364(a) does not cover any holding vessel, including balloons, capsules, or any type of vessel used to package or hide the narcotics. The HS 11364(a) law does not cover measuring and mixing instruments because these items are covered under different laws.
Meaning Of Narcotic Drugs Under HS 11364(a)In California
Under California law HS 11364(a), illegal substances refer to specific drugs. This law classifies the drugs into four classes that include opiates, hallucinogens, and depressants. Some of the most common drugs in these categories include meth, PCP, heroin, and cocaine.
What The Prosecution Must Prove To Find You Guilty Of The Crime
In California, the court cannot find you liable for the offense unless the prosecution proves certain facts, also known as elements of the crime.
The prosecution must prove you had control or possession of the illegal drugs. They must also prove you knew about the paraphernalia and that they were instruments or devices you can use to inject, smoke, or consume controlled substances unlawfully.
Understanding What Control Of The Instruments Or Devices You Can Use To Inject, Smoke, Or Consume Controlled Substances Unlawfully Means Under California Health and Safety Code 11364(a).
According to California law HS 11364(a), you can have two types of control over drug paraphernalia. These are constructive and actual control.
Actual control means you carry the drug paraphernalia on your person. The prosecution can prove actual control if the authorities arrest you with the drug paraphernalia, for example, a cocaine spoon in your bag.
According to the law, the prosecution can charge you if you own the paraphernalia, even if it is not on your person. For example, if the authorities raid your house and find a cocaine spoon you own on your dresser, you can be charged with constructive control of drug paraphernalia. The court can also find you liable for the offense if you control the paraphernalia in conjunction with a partner. You can be charged with constructive control of drug paraphernalia if the authorities recover a syringe and needle that you use together with your brother to inject heroin.
Carl and his brother Mark are heroin addicts. Carl comes to live with his brother and brings his syringes and needles that he uses to inject heroin. Mark, also a heroin addict, uses the same needles and syringes to inject heroin. If the authorities search the house and discover the needles and syringes, the prosecution can charge Mark with contravening HS 11364(a). According to the law, Mark has constructive control over the syringes and needles because he also uses them, although they belong to his brother.
Defenses You Can Use Against HS 11364(a) Charges In California.
You can fight HS 11364(a) charges using various defenses. However, it is critical to enlist the services of a well-experienced California lawyer to represent you in court. Below are defenses you can present while fighting the charges.
The Paraphernalia Was Out Of Your Control
The prosecution must prove you had control over the drug paraphernalia for the court to find you guilty of the offense. Therefore, you can state you did not have control over the drug paraphernalia, in which case the court cannot find you liable for the offense.
For example, the police suspect you of arson and raid your house. During the search, they discover a crackpot in your house. However, the crackpot belongs to your roommate. Furthermore, you have never used it since you do not do drugs. The court should exonerate you from the possession of drug paraphernalia charges since you do not own the pot nor do you have control of the same.
The Instrument Was Not A Drug Paraphernalia
You can also state that the instrument was not drug paraphernalia although it looked like one. A person can use a needle and a syringe to inject heroin or other drugs. However, you can use the same instruments to inject insulin or treat your pets. You can use a pipe for narcotic drugs purposes. You can also smoke tobacco using a pipe. Therefore, the prosecution has to prove you used these instruments to consume illegal drugs to convict you of the crime.
You Did Not Have The Knowledge The Instrument Was Drug Paraphernalia
The prosecution has to prove you knew the instruments were drug paraphernalia to convict you of the crime. Therefore, you are not guilty of contravening HS 11364(a) even if police find items used for injecting or consuming illegal drugs and you did not know what they were. However, this defense works best if you do not have a previous drug-related charge.
The court relies on some parameters to determine your knowledge of items used to consume drugs. The judge will determine your knowledge of drug paraphrenia by finding out if you have any other charges related to drug possession. The judge will also consider your explanation of the use of the paraphernalia and consider expert testimony concerning the instruments.
You Did Not Know The Paraphernalia Was There
The prosecution can only find you liable for the offense if they can prove you knew about the presence of the paraphernalia. You can state you did not know of the presence of the paraphernalia. For example, you can argue that you lent someone your “hoodie,” and they left a cocaine pipe in the pocket without your knowledge. You can also state an unknown person placed their needles and syringes in one of your bike’s compartments, and you did not have any knowledge of the paraphernalia.
The Police Conducted An Illegal Search
The court cannot use any evidence the police acquire during an illegal search. Unfortunately, the law enforcement officers may discover the drug paraphernalia during one of these operations. For example, you are riding your bike with a broken tail light. The police stop you and, without justifiable cause search your bike and discover a cocaine spoon on the bike’s side compartment. In such a case, your attorney can argue the police discovered the cocaine spoon during the unauthorized search and urge the court to dismiss the charges.
Penalties For Violating California Health Stature 11364(A) HS
Violating Health Stature 11364(a) is a misdemeanor in California. If found guilty, the judge can sentence you to a maximum of six months in a county jail or charge you a maximum fine of $1,000 or both. However, the consequences for a conviction of the crime are more severe for licensed professionals, including doctors, lawyers, contractors, and teachers, among other professionals. Upon conviction, your professional licensing board may suspend or revoke your license.
However, you may be eligible for the drug diversion program even after conviction. The court can sentence you to the program if your drug possession or other drug-related offenses are not violent. However, you can only qualify for the program if you plead guilty or enter the “no contest” or “nolo contendere” plea.
The judge will set conditions for your probation where you have to complete a drug rehabilitation program. The condition may also include drug testing at set intervals.
The judge will dismiss your drug paraphernalia charges upon the successful completion of your probation. If you fail to follow the probation conditions or you do not complete the rehabilitation program, the judge can send you to jail.
Remember the law automatically disqualifies you from the drug diversion program if your charges include possession of drug paraphernalia and a simultaneous misdemeanor or felony offense.
Professionals Who Are Exempt From Prosecution From Possession Of Drug Paraphernalia Offense In California
Certain professionals are exempt from prosecution against the charge in California. Some of them include law enforcement officers who are working under direct orders from their superiors, doctors, veterinarians, and other health professionals who have a license from the California State Board of Pharmacy. The law allows these professionals to prescribe, transfer or sell needles and syringes and other instruments you can use to inject drugs.
Contact A Long Beach Criminal Attorney Near Me
The drug paraphernalia charge is a serious offense that can have far-reaching ramifications in your personal and professional life. You can face jail time, pay hefty fines or lose your professional license.
Therefore, it is critical to enlist the services of a qualified criminal attorney if you are facing possession of drug paraphernalia charges. At Long Beach Criminal Attorney, we have a wealth of experience representing clients facing drug paraphernalia charges. We strive to achieve the best possible outcome and keep your record clean. Contact us today at 562-308-7807 for a free consultation.