The war on drugs is quite extensive. While you may be aware that possession of controlled substances is a crime, little focus is paid to possession of drug paraphernalia. It is a crime under Health and Safety Code 11364(a) to possess paraphernalia to deliver controlled substances into the human body. This broad definition offers police officers and prosecutors significant latitude on avenues to arrest and prosecute individuals for an HS 11364 violation. Knowing the facts about the possession of drug paraphernalia is in your best interest. Call the California Criminal Lawyer Group should you face an HS 11364 violation in Santa Ana.

Possession of Drug Paraphernalia Under Law

HS 11364 makes it an offense to possess instruments, devices, or paraphernalia linked to smoking, injecting, or consuming controlled substances. Hs 11364’s definition provides elements the DA must prove in the case against you.

Elements of the Crime

Prosecutors bear the burden of proof. You can only be found guilty if the p[rosecution establishes the following as actual.

  • You had constructive possession or exercised control over the drug paraphernalia.
  • You were aware of the paraphernalia’s presence.
  • You understood the device or instrument to be drug paraphernalia.

Let us look at each element in detail to understand the offense better.

  1. Control

Control is either actual or constructive.

You exercise active control when you have a device or physically carry it on your person at the time of the arrest, for example, carrying a cocaine pipe in your pocket.

Constructive control is exercised when you either:

  • Exercise control over the device, for example, when you own a bong and leave it on your dresser.
  • You have a right to exercise control over the instrument personally or with another individual, for example possessing a cocaine pipe that you share with your roommate and is in the bathroom you both share.

  1. Paraphernalia

Drug paraphernalia includes objects, devices, or items used to smoke, inject, or consume controlled substances and narcotics. Common drug paraphrenia includes but is not limited to:

  • Pipes made of glass, wood, ceramic, plastic, or stone
  • Bongs, water pipes, and chillums — Chillums are long hollow pipes primarily made of clay
  • Freebase cocaine kits or any other devices used to smoke cocaine
  • Roach clips — Objects used to hold burning materials like joints or rolled up cigarettes too small to hold by hand
  • Miniature spoons — These spoons are primarily used for snorting cocaine since they hold less than one-tenth o a cubic centimeter of a substance
  • Needles or syringes for injecting controlled substances

Note: As of 2021, a legal exception was provided regarding hypodermic syringes or needles. Possession of the two is only permitted if:

  • Possession of both is solely for personal use.
  • You acquire the syringe and needles from a pharmacist, physician, syringe or needle exchange program, or any other legally-recognized avenue that provides sterile needles and syringes without a prescription.

The exception prevents HIV transmission and other bloodborne infections and diseases prevalent among drug users.

Possession of items associated with the manufacture, distribution, and sale of controlled substances or drugs is criminalized under:

  • Health and Safety Code 11351 — Drug possession for sale statute, and
  • Health and Safety Code 11352 — Transportation and sale of controlled substances

Common examples of devices, if found in your possession, will result in prosecution under Health and Safety Codes 11351 and 11352 include but are not limited to:

  • Blenders, bowls, or other mixing devices used to compound controlled substances
  • Balloons, capsules, or other contains used to conceal or package drugs
  • Chemicals or materials used in cutting or diluting narcotics
  • Instruments used to measure the purity or strength of a controlled substance
  • Scales and balances used in weighing controlled substances

  1. Substances And Narcotic Drugs

As per HS 11364, the devices introduced into evidence should be linked to controlled substances and narcotic drug use. The phrases narcotic drugs and controlled substances describe particular drugs and drug-like substances, including opiates, stimulants, hallucinogens, and depressants. Some commonly used controlled substances and narcotics include heroin, methamphetamines, cocaine, and PCP.

Note: Marijuana does not feature in HS 11364. Any marijuana use, including possession of marijuana paraphernalia, is regulated under marijuana laws.

Particular individuals are exempted from prosecution under HS 11364. They include:

  • Police officers or individuals working under their immediate supervision or direction
  • Doctors, pharmacists, veterinarians, podiatrists, dentists, manufacturers, distributors, wholesalers, and retailers licensed by California’s State Board of Pharmacy to sell, transfer and prescribe hypodermic needles, syringes, or other items intended for use to inject drugs into the human body.

Fighting Possession of Drug Paraphernalia Charges

Defense strategies are case-specific. Attorneys assess and evaluate the circumstances in the cases to determine the ideal strategy that will result in the desired outcome. It is worth noting that the defenses could result in reduced changes if not an outright dismissal of your charges.

Below are some of the possible defenses your attorney could use.

  1. The Device Was Not Paraphernalia

Just because a device is considered drug paraphernalia does not mean having a similar device serves the same purpose. Take a syringe and needles, for example. The immediate assumption is that if found on your person, there is a likelihood you use them to administer drugs in your body. However, the syringes and needles also administer medication to animals.

Take a pipe as another example. Whereas cocaine users could use it, others could use it to smoke tobacco, which is not an illegal substance.

  1. Drug Paraphernalia Was Authorized for Personal Use

Doctors issue some devices for personal-medical use. Police officers and the DA could ignore your attempts to point out the validity of the personal use authorization. In other situations, they overlook the prescription informed to their bias that drug paraphernalia is almost certainly indicative of drug use. Your prescription or any other certified doctor’s approval serves as evidence to challenge the prosecutor’s case.

  1. You Did Not Know of the Paraphernalia’s Presence

It is not enough that the paraphernalia was discovered in your possession. Prosecutors must prove you were aware of its existence. If you were unaware you had the item, you are not guilty of possessing drug paraphernalia.

You can be unaware that you have drug paraphernalia in several scenarios:

  • Another person left the device in your vehicle’s back seat
  • An individual put a syringe in your backpack to avoid an arrest
  • A friend borrowed your jacket and left a miniature cocaine spoon in one of the pockets

Experienced attorneys are in a position to challenge the case since these incidents are common.

  1. The Paraphernalia Was Seized During an Illegal Search and Seizure

Often, drug paraphernalia is obtained through illegal search and seizures, violating your Fourth Amendment rights. In this situation, a defense attorney will file a motion to suppress the evidence per PC 1538.5.

The 1538.5 motion is filled either at a preliminary hearing or a separate pretrial hearing. If the motion is granted, the DA will be barred from introducing the specific evidence in the trial. This means your case could be dismissed or result in a plea bargain agreement in your favor.

Note: Courts grant 1538.5 motions if the evidence was obtained through:

  1. An unreasonable search conducted without a search warrant
  2. A police search was carried out with a warrant if:
  • The warrant was deficient
  • The evidence obtained was not as described in the warrant
  • The warrant was issued without probable cause, or
  • The search was conducted in a manner in violation of the US constitution.

Note: Police can search you, your vehicle, or residence without a warrant in specific situations, that is:

  • You freely gave the officers permission to the search, or
  • The officers have probable cause to believe you are in possession of contraband
  • Officers can search your vehicle if you are arrested — This search is incidental to an arrest and is allowable by law
  • Police officers can search an impounded vehicle — This is known as an inventory search. Any devices, information, or material critical in the case will be introduced as evidence.

Without consent and probable cause, you have grounds to file a 1538.5 motion.

  1. No Possession

Possession is required for you to be found guilty under HS 11364. Possession is either actual or constructive. If you factually did not possess the paraphernalia, you are not guilty of a crime under HS 1164. Being close to or having access to the injections or syringes does not mean they belong to you.

  1. Entrapment

When an officer induces an otherwise law-abiding citizen to commit an offense, the defendant (the induced party) has grounds to claim entrapment as a defense. Entrapment only works if you prove that the official's actions were overbearing. You, therefore, have to demonstrate that his/her actions were fraudulent, flattering or that you were harassed or pressured to commit the offense.

Key focus of the definition above is on a law-abiding citizen. Any priors on your record will discount your credibility. Thus, the entrapment defense is not applicable.

Further, the entrapment defense is challenging to prove, though not impossible. An experienced attorney will draw the jury’s attention to the officer’s conduct, which is a departure from acceptable behavior under law.

Entrapment laws allow police to conduct undercover operations, initiate a criminal activity, present an opportunity for a suspect to participate in illegal activity, and create reasonable assurances that you are not being set up. Any departure from this is grounds to challenge the HS 11364 violation charges.

  1. You Are Authorized to Possess the Paraphernalia

You are not violating the law if you are licensed by California’s State Board of Pharmacy to sell, transfer, or handle items used to inject drugs into the human body. Further, nurses too fall into the authorized individual’s list. Therefore, an attorney will use this defense to fight the charges if you were authorized to handle the paraphernalia.

  1. Insufficient Evidence

Failure by the prosecution to sufficiently meet the burden of proof is an opportunity to argue the lack of evidence for a conviction. A defense attorney presents evidence showing the prosecution’s failure to prove all elements of the case or mitigating factors demonstrating the prosecution’s evidence as insufficient.

Penalties If Convicted for an HS 11364 Violation

An HS 11364 violation is a misdemeanor offense. You will receive the following punishment upon conviction:

  • Up to six months in jail
  • Up to three years on probation instead of jail time and/or
  • A fine not exceeding $10,000

A conviction for an HS 11364 violation’s consequences does not end with the above penalties. Your professional license will be negatively impacted. An arrest is sufficient to result in the suspension or revocation of your professional license.

Drug Diversion Program

The drug diversion program, as detailed in PC 1000, allows non-violent drug offenders to receive treatment and rehabilitation instead of serving a jail sentence.

You have to meet the following conditions to qualify:

  • You must not have been convicted of a non-violent drug offense within five years of the possession of drug paraphernalia charges
  • The current drug paraphernalia charges should not have involved violence or a threat of the same
  • You should not have any felony convictions on your record within five years of the current charge
  • There should be no evidence of additional drug crimes like possession of drugs for sale.

If you qualify, you will have to plead guilty or enter a nolo contendere plea, also known as a no-contest plea.

You have to complete the rehabilitation program as a condition of your release. Further, random drug testing is another condition of your probation. Judges can choose an appropriate punishment should you violate the probation terms. Top among them is sending you to jail to serve the prison sentence outlined in PC 11364.

Other possible probation terms include:

  • Do no crime within the probation period — This condition is in exclusion of traffic infractions
  • Engaging in community service within the prescribed hours
  • Visiting your probation officer as many times as detailed in the probation order
  • Pay a fine of up to $1,000 for a first offense
  • Paya fine of up to $2,000 for a second offense

Completing your probation results in the dismissal of your drug paraphernalia possession charges.

Offenses Related to Possession of Drug Paraphernalia Charges

Some drug crimes are similar to drug paraphernalia possession violations in that the elements prosecutors have to prove are more or less similar. Therefore, prosecutors could charge you with these crimes alongside or instead of an HS 11364 violation.

The crimes include:

  • Simple possession of a controlled substance, an HS 11350 violation
  • Business possession of drug paraphernalia, an HS 11364.5 violation
  • Manufacturing and transporting drug paraphernalia, an HS 11364.7 violation
  • Presence during an unlawful use of a controlled substance, an HS 11365 violation
  • Under the influence of controlled substances, an HS 11550 violation

  1. Simple Possession of a Controlled Substance

It is an offense to be in possession of a controlled substance without a prescription. Controlled substances include illegal drugs and legal prescription medication.

Over and above proving you possessed the drugs without a prescription, prosecutors must prove you knew of the drug’s presence and the substance’s nature as controlled. Further, you should have a usable amount for you to be found guilty, meaning traces of debris are insufficient to find you guilty.

Simple possession is a misdemeanor violation punishable by a jail term not exceeding one year and/or a fine of up to $1,000.

This offense can also be prosecuted as a felony if you have a prior conviction for a sex crime or a serious felony. If convicted, you will spend up to three years in jail.

  1. Business Possession of Drug Paraphernalia

HS 11364.5 prohibits running businesses that store, display, offer or sell drug paraphernalia unless these items are stored or displayed in a separate room inaccessible to minors under the age of 18 years unless accompanied by an adult.

A guilty conviction means losing your permit or business license. Additionally, the state will seize and forfeit all the drug paraphernalia. These actions serve as grounds to deny you a license renewal should you apply.

Note: Convictions for HS 11364.5 result in business consequences without criminal consequences for the owner.

  1. Manufacturing and Transporting Drug Paraphernalia

HS 11364.7 makes it a crime to possess, furnish, transport, or manufacture drug paraphernalia when you should reasonably know or know the paraphernalia will be used in connection with drug use and sale.

Further, any individual who:

  • furnishes minors with the devices, or
  • has hypodermic needles on school premises with the intent or knowing a minor will use the needles to inject illegal drugs,

is criminally liable under HS 11364.7.

You can face misdemeanor or felony charges depending on the circumstances of the case. Misdemeanors result in a one-year jail sentence and a maximum fine of $1,000. Felony convictions, on the other hand, result in a 16-month, two, or three-year prison sentence with a maximum fine of $10,000.

  1. Presence During an Unlawful Use of a Controlled Substance

Knowingly being present in a location where there is the use of a controlled substance is an offense prosecutable under HS 11365. You will be charged for aiding and abetting controlled substance use.

Prosecutors will have to prove:

  • You willingly and intentionally were present or visited a location where another was smoking or using controlled substances
  • You knew that the other individual wanted to smoke or use the controlled substances
  • You intended to aid and abet the other individual in smoking or using the controlled substance
  • You said or took an action that aided and abetted the use of the substance
  • You knew your conduct or words aided and abetted other individual’s use of the controlled substance

Violations of HS 11365 are misdemeanors punishable by a jail sentence of up to six months. Prosecutors can include this charge alongside possession of drug paraphernalia charges if you are found in possession of the paraphernalia being used by another.

  1. Under The Influence of Controlled Substances

Being under the influence of a controlled substance is a crime under HS 11550 if it is unprescribed.

You only commit this offense when:

  • You willingly use a controlled substance or a narcotic drug or
  • You voluntarily were under the influence of the substance or drug, or both

Prosecutors must specify which drugs you allegedly used and should be among the controlled substances or narcotics. Further, prosecutors rely on the testimony of the drug enforcement officers (DREs), the arresting officers, and the reports on the chemical tests conducted.

HS 11550 is a misdemeanor violation. Convictions result in a one-year jail sentence. You will avoid jail time if you qualify for a drug diversion program.

Note: A conviction for an HS 11550 has negative immigration consequences. This means your conviction will result in your deportation. Additionally, you will be marked as inadmissible, thus denied re-entry to the US.

  1. Possession for Sale of Narcotics

HS 11551 makes it a crime to possess controlled substances with the intent to sell them.

The government has scaled up the war on drugs. That is why any possession of controlled substances is pursued aggressively. Prosecutors must prove their case by establishing the following as actual.

  • You willingly and knowingly purchased or possessed a controlled drug
  • You knew the drug’s nature, that is, you knew it was a controlled substance
  • You had a substantial quantity enough to use or sell, and
  • Yo either had the drug intending to sell it or purchased it intending to resell it

Possession for sale of narcotics offenses are felonies punishable by:

  • Probation and a jail sentence of up to one year
  • Two, three, or four years in jail, and/or
  • A fine not exceeding $20,000

Engage an Experienced Santa Ana Criminal Attorney Near Me

Should you be accused of being in possession of drug paraphernalia in Santa Ana, you should contact an attorney immediately. Their assistance helps reduce the charges if not secure a dismissal of your case, all dependent on the circumstances of your case.

Contact the California Criminal Lawyer Group at 714-844-4151 for a free case evaluation today. Let us provide you with the best legal assistance.