Updated: Dec 16, 2020
It is a crime in California to possess drug paraphernalia related to illegal narcotics. Drug paraphernalia is defined as miscellaneous items used in connection with illegal drug activity or use, such as hypodermic needles, opium pipes, etc. Of course, some drugs are not illegal in California and possession of paraphernalia related to these legal drugs should not be criminalized.
Common items that may be considered drug paraphernalia under Health & Safety Code section 11364 include: meth pipes, hypodermic needles and kits, scales, plastic baggies, balloons, opium pipes, water pipes, miniature spoons, and more. In fact, under California law, it is also illegal to possess any items related to planting, growing, processing, analyzing, concealing, or testing of illegal drugs... (HS 11364.5 Abbrev.).
Note: Possession of drug paraphernalia does not mean possession of items related to legal drug use or activity. For example, a scale or baggies used in connection with the legal sale or use of marijuana should not be illegal under HS 11364 because the legal sale or use of marijuana is not an illegal activity.
Important: Notice that some items listed above are common household items that, by themselves, should not be classified as drug paraphernalia under HS 11364. For example, a plastic baggie or a spoon is a perfectly legal item to possess under most circumstance; however, when those items are used in connection with illegal drug activity. then those items turn into contraband under HS 11364. The question in possession of drug paraphernalia cases becomes a question of the defendant’s intent. In other words, the defendant is not guilty of HS 11364 unless the prosecutor can prove that the defendant intended to use the item in connection with illegal drugs.
Circumstantial Evidence of Intent: In most drug paraphernalia cases, the district attorney will attempt to prove the defendant’s intent by circumstantial evidence. This means that the district attorney will attempt to show that the circumstances are suggestive of the defendant’s intent. For example, if the defendant is caught with small plastic baggies and spoon inside her backpack, but there are no other items in the backpack that put the items in context (i.e. food), then the suggestion of that evidence is that the plastic baggies and the spoon are related to illegal drug activity.
Common circumstantial evidence used by the district attorney in HS 11364 includes: plastic baggies too small to use for food, small spoons not located near food (especially spoons that have “drug stains” or spoons that are bent to facilitate heroin use), location of items found (near drugs or in a known “drug house”), scales found near drugs, needles found in possession of a person who does not have a medical condition that requires her to possess needles, a glass pipe with drug stains on the pipe, drug residue on items, a history of drug crimes listed on the defendant’s criminal record, drug testing strips, etc.
Note: Every possession of drug paraphernalia case is different; therefore, the evidence in every case is different. A circumstantial evidence case is one that considers all the evidence in relation to the big picture in order to draw an appropriate inference. For example, the possession of plastic baggies, by itself, is not a crime. If it were, school children would be in a lot of legal trouble. Whether or not a district attorney can prove his case with sufficient circumstantial evidence is decided on a case-by-case basis.
Direct Evidence of HS 11364: Most cases of possession of drug paraphernalia involve circumstantial evidence; however, cases that involve direct evidence are not uncommon. Direct evidence of possession of a drug paraphernalia includes: confession by the defendant, drugs found on or in the item possessed (such as drugs found in plastic baggies), witness statements against the defendant that inform the police of the item’s purpose, and more.
Possession Defined: It is illegal to possess drug paraphernalia under HS 11364. But what does possession mean in HS 11364 cases? According to California law, possession of an item can be actual or constructive. Actual possession means that the defendant has an item on her body, such as when a defendant has drugs in her pants, pockets, shoe, backpack, etc. Actual possession can include items that are within the defendant’s personal reach as well, such as when drugs are on a table near the defendant. Constructive possession occurs when an item is within the defendant’s control but not on the defendant's person or within her immediate control. For example, constructive possession occurs when drug paraphernalia is found in the defendant’s home or vehicle (i.e. glovebox, trunk, backseat, hidden in a false compartment, etc.).
Note: The district attorney cannot prove that the defendant is in violation of HS 11364 unless the district attorney can prove the defendant possessed the drug paraphernalia. As stated, evidence of an item as being drug paraphernalia can be proven by circumstantial and/or direct evidence. The same is true as to the possession of drug paraphernalia.
In sum, HS 11364 law states that a defendant is guilty of possession of drug paraphernalia only if the defendant did all of the following: 1) knew the item possessed was used for drugs, 2) intended that the item possessed would be used for drugs, 3) knew of the items presence, and 4) actually or constructively possessed the item determined to be drug paraphernalia.
HS 11364 Penalties
Jail: Possession of drug paraphernalia is charged as a misdemeanor in California. If found guilty of HS 11364, the defendant could face up to one hundred eighty (180) days in the county jail. This is in addition to a possible $1,000 fine and other punishments (See below).
Probation Sentence: A probation sentence is a period of supervision instead of jail. Probation sentences are common for first-time offender in HS 11364 cases, but a probation sentence is not guaranteed. A probation sentence in any HS 11364 case is considered informal probation, which means that the defendant is monitored by the court as opposed to being monitored by a probation officer. In addition, probation sentences are guided by terms or conditions of probation that must be followed in order to avoid a probation violation. The terms of probation in HS 11364 cases usually include: violate no law (during probation), pay fines, attend AA or NA classes, seek and maintain employment, submit to drug testing, serve work release or house arrest, serve community service, and more.
Diversion Program: Some HS 11364 cases might qualify for diversion. Diversion is a situation where he defendant pleads guilty to the crime; thereafter, the defendant completes terms of diversion that are similar to probation terms. If the defendant successfully completes diversion then the criminal case against the defendant is dismissed (i.e. diverted from criminal prosecution). Diversion programs are usually excellent for licensed professional who could lose their respective professional license if his or her criminal case were otherwise not diverted. Diversion is not available in every possession of drug paraphernalia case. For more information, see Diversion, RISE Program, and Licensed Professionals with Criminal Convictions.
Work Release: If the defendant is sentenced to jail pursuant to HS 11364, then she is usually allowed to serve that jail sentence alternatively on a work release program. A work release program is a form of manual labor that is intended to serve as an alternative to a jail sentence. Not every defendant convicted of HS 11364 will receive a work release sentence (or house arrest). This is especially true in HS 11364 cases that are sentenced under a plea agreement where the defendant agrees to serve a jail sentence and the sentencing judge does not allow the defendant to vary the terms of her plea agreement.
More Punishment: In addition to any jail or probation sentence, a conviction for possession of drug paraphernalia can lead to any of the following punishments: loss of driver’s license (if drug paraphernalia items are found in a vehicle), mandatory drug classes (AA and/or NA), fines and fees, immigration concerns (possible loss of the right to remain in, or reenter, the United States for non-US citizens), loss of the right to enter into the armed forces (Space Force, Army, Air Force, etc.), loss of employment, possible loss of certain rights in family law court (child custody, adoption, etc.), loss the right to own or possess a firearm for up to ten (10) years, loss of the right to enter into a diversion program (usually for repeat HS 11364 offenders), loss or suspension of professional occupational licensing (doctors, dentists, lawyers, teachers, nurses, etc.), and more.
Note: Business owners could lose their respective business license(s) or leases for allowing other people to use, store, or manufacture illegal drugs or drug paraphernalia on the business property.
Defenses to HS 11364
Every HS 11364 case is different; therefore, every defense to a HS 11364 case is different. With this in mind, the most common defenses used in possession of drug paraphernalia cases includes: statute of limitations, coerced confessions, illegal search and seizure, Miranda violations, insufficient evidence to show actual or constructive possession, temporary possession, and more.
Temporary Possession Defense: Sometimes, a defendant will be in actual possession of drug paraphernalia, but that defendant is nevertheless not guilty of HS 11364 because her possession of the drug paraphernalia is temporary and lawful. For example, if the defendant temporarily takes a crack pipe from another person so that the other person is unable to use the crack pipe, the defendant should not be charged with HS 11364. This assumes that the defendant who took temporary possession of the drug paraphernalia acted in good faith to stop a crime and only took temporary possession of the drug paraphernalia. Temporary, in this sense, means only long enough to stop the crime.
Personal Use: With respect to hypodermic needles, California law allows a person to possess a syringe or hypodermic needle, so long as the syringe or hypodermic needle is only used for personal drug use and the item is secured from a professional provider (i.e. doctor, hospital, etc.). This legal exception to HS 11364 is set to end in 2021.
Exceptions: Certain agencies and their respective agents are legally exempt from HS 11364 crimes. These legally exempt agencies include: certain law enforcement personnel (including police officer who possess drug paraphernalia in the regular course of their duties), hospitals, doctors, pharmacists, dentists, veterinarians, and more.
To learn more about the crime of possession of drug paraphernalia, or HS 11364, contact our criminal defense lawyers today. Our criminal defense lawyers are experienced in the defense of just about every type of drug crime in California. We have defended hundreds of felony and misdemeanor criminal allegations in all Inland Empire courts. Our lawyers are available to discuss your defense options at your convenience and first-time in-officer consultation are provided at no charge. Call today!
Possession of hypodermics BP 4140
Presence during Use of a CS HS 11365(a)
Manufacturing Drug Paraphernalia HS 11364.7
Furnishing Drug Paraphernalia to Minor HS 11364.7(c)