Posted on November 6, 2015
Orange County “Drug Paraphernalia” Attorney – California Health & Safety Code 11364(a) HS
Possession of drug paraphernalia is formally defined under California Health & Safety Code 11364(a) HS which states, “It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a [drug classified as a controlled substance].” Common substances include methamphetamine, heroine, marijuana, PCP, and crack-cocaine. Normally this crime is charged along with possession of a controlled substance. Furthermore, in the event you’re charged with possession for the purposes of sale, a defense of personal use can be argued since you were also in possession of paraphernalia – evidence tending to demonstrate personal use versus sales. If you’re charged with a drug offense, contact a Drug Crimes Defense Attorney in Orange County at the cases earliest possible juncture. Early intervention could mean the difference of spending time in county jail or rejecting / dismissing the case completely.
Elements of the Crime
In order to prove that you’re guilty of possessing drug paraphernalia, the prosecutor must prove each element beyond a reasonable doubt:
1. You unlawfully possessed an object that can be used to unlawfully inject or consume a controlled substance;
2. You knew of the objects presence;
3. You knew the object could be used to unlawfully inject or consume a controlled substance.
Defense of Authorized Possession
If you possessed the needle(s) or syringe(s) for personal use, and you obtained the device(s)/object(s) from an authorized source, and you did not possess more than 10 needles, then you may assert a defense to this charge as “authorized possession.” Moreover, if your doctor prescribed you to carry a needle / syringe for a legitimate medical purpose, then you are not guilty of this charge.
The most common defense to this charge is ‘lack of knowledge.’ If you did not know you were in possession of an object or device or you did not know the device could be used to inject or consume a controlled substance, then you’re not guilty of this crime. For example, someone left a pipe in your car without you knowing of its presence. Additionally, another defense could involve possession. If you did not exercise control over the device/object, or right to control or access the device, then you’re not in possession of the object. Lastly, the police may have committed a violation of your Fourth Amendment right to be free from unreasonable searches and seizures. In the event the police violated your Fourth Amendment right, the evidence will be suppressed – i.e., deemed inadmissible against you – and the prosecution will be unable to proceed with their case.
Drug Paraphernalia Punishment
A conviction for drug paraphernalia is a misdemeanor offense carrying up to six months in the county jail and a fine not exceeding $1,000. In addition, a conviction can adversely affect someone’s ability to retain or maintain their state license – e.g., doctor, attorney, contractor, broker, etc. Normally you will be eligible to participate in alternative sentencing (drug diversion). In other words, you may be able to withhold sentencing, enter into drug treatment counseling, and after successful completion of the program, the case will be dismissed. Additionally, revisions in the law have allowed certain qualifying defendant’s to guarantee their case dismissed via pretrial diversion. Contact us today to discuss your eligibility and avoiding a conviction.
Drug Paraphernalia Expungement
If you suffer from a conviction for possessing drug paraphernalia under HS 11364(a), then you may be eligible to expunge your conviction under Penal Code 1203.4. There are certain conditions that must be fulfilled to deem you eligible for this remedy. For instance, you must be finished with your probation period and completed all orders from the court. Upon proper petition to the judge, the court will withdraw its finding of guilt, enter a not guilty plea, and then dismiss the case pursuant to P.C. § 1203.4. From that moment forward, you will be released from all “penalties and disabilities” resulting from your conviction. If you’re seeking an expungement for a drug crime, contact the Law Offices of John D. Rogers to discuss your eligibility.
Contact an Orange County Drug Crimes Lawyer
If you’ve been arrested or charged with possession of drug paraphernalia under HS 11364(a), then contact Orange County Drug Crimes Lawyer at the Law Offices of John D. Rogers. to schedule a free confidential consultation concerning your rights and defenses.