Pursuant to the California Health and Safety Code, it is illegal to possess any device used to smoke or ingest a controlled substance. These devices, known as drug paraphernalia, can include everything from spoons used for heroin to pipes used for crack cocaine. A charge of possession of drug paraphernalia is a misdemeanor, which can carry a jail sentence as well as fines.
A conviction can also cause havoc in your life by affecting your ability to keep a job, find housing, or hold a professional license. An experienced criminal defense attorney may be able to help you achieve a positive outcome and avoid having your life turned upside down.
Possession of Drug Paraphernalia in California
California Health and Safety Code 11364 is clear that it is unlawful to possess an opium pipe or “device, contrivance, instrument, or paraphernalia” used for unlawfully injecting or smoking any controlled substance illegal under California law. To be convicted of possession of drug paraphernalia, a prosecutor must show that you:
- Unlawfully possessed and controlled paraphernalia used to inject or smoke a controlled substance;
- Knew of the paraphernalia's presence; and
- Knew that it was drug paraphernalia.
It isn't hard to determine if you knew an item was drug paraphernalia or if it was in your presence. However, whether or not the paraphernalia was in your “control” can be harder to understand.
According to the Health and Safety Code, “control” of paraphernalia can be actual or constructive.
- Actual control means that it is physically on your person at the time of your arrest. A crack pipe in your pocket is an example of actual control. But you don't have to be carrying an item of paraphernalia on your person to be charged with possession of drug paraphernalia.
- Constructive control can include items that you regularly use and actually control. For example, if you routinely use a spoon for injecting heroin and the police find the spoon under your bed, you can be arrested for constructively controlling the spoon. This is the case even if you aren't in the room when it is searched. Constructive control can also apply to shared drug paraphernalia. If you and your roommate share a pipe for smoking crack cocaine and it is found on your kitchen table, both of you could be charged for possession of drug paraphernalia.
There is one major exception written into the Health and Safety Code, and it is currently set to expire in 2021. The California State Legislature wrote an exception for possession of hypodermic needles with the goal of preventing the spread of disease:
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.
Common Objects Deemed to be Drug Paraphernalia
There is no formal list of items that can be considered drug paraphernalia under California law. The statute is intentionally open-ended given that many household items can be converted to be used as drug paraphernalia.
Some of the more common items of drug paraphernalia include:
- Water pipes or bongs
- Roach clips
- Tin foil
- Glow sticks
- Playing cards
- Miniature spoons
- Chillums (single-use pipes also known as “one-hitters.”)
- Rolling papers
- Freebase cocaine tools
The statute does exclude syringes in some circumstances as discussed in the above section. Additionally, items that are more commonly used in the manufacture of drugs are excluded and typically lead to more serious charges. These excluded items can include scales and balances for weighing drugs as well as capsules and balloons used to distribute them.
Potential Penalties for a conviction of Possession of Paraphernalia
Possession of Drug Paraphernalia is a misdemeanor under California law. It carries a maximum jail sentence of up to 6 months in jail and a maximum fine of $1,000. If this conviction is your first, your defense attorney may be able to negotiate to have you placed in a drug diversion program to avoid a drug conviction on your record.
A conviction for possession of drug paraphernalia can have other effects on your life. You may find yourself losing out on opportunities for housing or employment based on your conviction. What's more, if you hold a professional license in California, it's possible a conviction could lead to the suspension or termination of that license. Time is of the essence when you are arrested for possession of drug paraphernalia; it is critical that you contact a drug defense attorney as soon as possible to give them time to craft your defense.
Every criminal charge has valid defenses that can be used by an experienced criminal defense attorney. In a paraphernalia case, it is important for your defense attorney to show how the facts surrounding your case do not meet all of the elements needed for the prosecutor to gain a conviction. The evidence used against you must also have been acquired legally; if the evidence was turned up during an illegal search or seizure, your attorney may be able to have that evidence barred from being used against you.
You Were Not in Control Over the Paraphernalia
As we have discussed, one of the more subjective elements for proving possession of drug paraphernalia is whether or not you had control over the paraphernalia. Even if you are aware of drug paraphernalia and it is in or around your home, you may have a valid defense if you can show you never had actual or constructive control of it.
For example, if the police search your home and seize a crack pipe -- that you were aware of -- from under your roommate's bed, you have a valid defense if the pipe belonged to your roommate and you had never used it.
The Device was not Drug Paraphernalia
It goes without saying that if the device in question was not drug paraphernalia, you have a valid defense. However, common household items can be drug paraphernalia depending on its purpose. What's more, even items that are commonly used to smoke or inject drugs can have other purposes. An officer might assume a glass pipe was intended for illegal drug use, but you haven't broken any laws if you use it to smoke tobacco.
You Didn't Know it was Drug Paraphernalia
One of the things a prosecutor must prove is that you knew the object you possessed was drug paraphernalia. For example, you might have a defense if you agree to hold a pipe for a friend unaware that it was used for narcotics and the pipe is found on you by law enforcement. This can be hard to prove, and the jury will consider the circumstances in which the paraphernalia was found, your experience with controlled substances, and your criminal history. If you have no criminal history or pattern of drug use, your defense attorney may be able to use the latter to show the jury this was all a misunderstanding.
Likewise, it is also a defense if you were unaware that you had possession or control of the paraphernalia. Consider this: if you purchased a used suitcase that, unbeknownst to you, contained drug paraphernalia in it you would have a valid defense to the charge.
You Were a Victim of Illegal Searches or Seizures
Even if the state is able to meet all three elements to prove possession of drug paraphernalia, you still have a valid defense if any of the evidence against you was obtained illegally. The Constitution provides you with certain rights, and courts have ruled that if your rights are violated during a search the police cannot use any evidence they find against you. Known as “fruit of the poisonous tree,” this evidence can include any items seized during a search of your car or home. It can also prevent law enforcement from using any confessions made during or after the illegal search.
Finding the Right Possession of Drug Paraphernalia Defense Attorney in L.A. County
If you or a family member has been charged with possession of drug paraphernalia under Health and Safety Code 11364 in L.A. County, William S. Kroger Attorney at Law is ready to help. William S. Kroger has dedicated his law practice to criminal defense cases. He is focused on protecting the constitutional rights of his clients and is experienced in handling possession of drug paraphernalia cases.
William S. Kroger prides himself on the personal attention he pays to each client. Unlike many large law firms, he handles his cases himself instead of passing cases off to junior attorneys. Mr. Kroger is dedicated to ensuring his clients are treated fairly and provided with the best defense possible. Contact William S. Kroger Attorney at Law to set up a free consultation.