Posted on March 2, 2016

Drug Paraphernalia – California HS 11364

In California, the crime of possession of drug paraphernalia is charged under Health & Safety Code 11364(a) making it unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance. Devices or instrument may include, but are not limited to, crack-cocaine, methamphetamine, or heroin. When arrested or charged with this offense, it’s in your best interest to retain a Drug Paraphernalia Defense Lawyer at the cases earliest juncture. The following article will address 6 important things you should know about the charge of possessing “drug paraphernalia”.

1. What Must the Prosecutor Prove for this Offense?

According to CALCRIM 2410, in order for you to be found guilty of possession of controlled substance paraphernalia under HS 11364(a), the government holds the burden to prove each of the following elements beyond a reasonable doubt:

1. You unlawfully possessed an object that can be used to unlawfully inject or consumed a controlled substance;

2. You knew of the object’s presence;

3. You knew that the object could be used to unlawfully inject or consume a controlled substance.

2. What are the Legal Defenses to Drug Paraphernalia Charges?

I. Lack of Possession

The government has the burden to prove you were in “possession” of the drug paraphernalia. The government can prove this under 3 possession theories: 1) actual possession where the device or instrument was found on your person or in your vehicle; 2) constructive possession where you had control over or the right to control the paraphernalia; and 3) joint possession where two or more persons can be in possession of the paraphernalia at the same time. Because “possession” is imprecisely defined, it is often the legal issue in the case.

II. Lack of Knowledge

There are two ways to negate the “knowledge” element. First, you did not know of the objects presence – i.e., someone left it in your vehicle or in a drawer in your home without you knowing. Second, you did not know the device was used for ingesting or consuming a controlled substance.

III. Authorized Possession

The defense of authorized possession of hypodermic needles or syringes occurs when you were issued a prescription or given authorizations from a licensed physician prior to your arrest. It requires the showing of: 1) you possessed the needles or syringes for personal use; 2) you obtained them from an authorized sources; and 3) you possessed no more than 10 needles or syringes.

IV. Illegal Search or Seizure

If law enforcement gained the drug paraphernalia through an illegal search or your initial detention was without ample reasonable suspicion or probable cause, then your lawyer will file a motion to suppress the evidence against you. If the motion is granted, the judge will order the suppressed and the government will be unable to proceed with their case against you. Examples of search & seizure violations occur within the context or search warrants, home searches, traffic stops, and searches of your person.

V. Miranda Violation

If you were detained by police officers and you gave incriminating statements, then you may be able to suppress your statements if you were subjected to custodian interrogation without being admonished of your Miranda rights. In that instance, some or all of your statements will be ordered suppressed and inadmissible against you.

3. What is the Punishment for Possession of Drug Paraphernalia?

A conviction for possession of drug paraphernalia carries up to 6 months in the county jail. The court will normally impose a period of probation for 3 years and order you to complete drug counseling and/or community service.

Depending on your prior criminal history, you may be eligible for diversion (also known as “DEJ”) where the court will order you to complete drug rehabilitation without actually being formally sentenced and convicted of the crime. Upon completion of DEJ, the court will dismiss the case.

4. What are Examples of Drug Paraphernalia?

• Holding a device used for smoking methamphetamine in your pocket

• Being in possession of currency that contains residue of cocaine

• Driving with a bong, pipe, or other devices used for smoking marijuana without a prescription or recommendation from a physician.

5. Can I Expunge my Drug Paraphernalia Record?

If you were convicted of drug paraphernalia under HS 11364, then you may be eligible to expunge your record under PC 1203.4 upon successful completion of your probation period. Upon proper petition and if the court grants your petition, the court will withdraw its finding of guilt, enter a not guilty plea, and dismiss the case immediately thereafter. From that moment forward, you will be released from all penalties and disabilities resulting from your conviction. This remedy carries considerable benefits if you’re seeking employment in the private sector. For more information about expunging your record, contact the Law Offices of John Rogers.

6. Free Criminal Defense Consultation

If you’ve been arrested or charged with possession of drug paraphernalia under HS 11364, contact Drug Crimes Attorney John Rogers at the Law Offices of John D. Rogers for a free confidential consultation.

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