Drug offenses are the most prevalent in California. People typically trust that the authorities can only apprehend you for a drug-related crime if they find you in possession of narcotics. Nevertheless, Health and Safety Code (HS) 11364(a) criminalizes the possession of drug paraphernalia. Paraphernalia refers to an instrument or tool like bongs, roach clips, rolling papers, and spoons utilized to ingest controlled substances illegally.

Possession of these drug instruments is a misdemeanor that attracts court fines and jail incarceration upon sentencing. A conviction could result in suspending your professional license if you are a professional, like a lawyer. Therefore, when charged with this crime in Fresno, you should talk to the California Criminal Lawyer Group to explain the crime and craft defenses.

Overview of Drug Paraphernalia Possession

Per HS 11364(a), it is unlawful to possess drug paraphernalia if the devices are in your possession illegally or you intend to use them for illegal reasons. Drug paraphernalia refers to instruments like opium pipes, contrivances, or devices used to inject or smoke controlled drugs. The drugs you are ingesting using the paraphernalia must be harmful drugs or controlled substances belonging to the banned opiates category.

However, even though syringes and hypodermic needles are considered drug paraphernalia, the law exempts them from the list if there is sufficient evidence that you lawfully possess them. When you buy them after a physician’s prescription from an accredited outlet to inject legal drugs, the syringes and needles are not considered drug paraphernalia. Also, the code section does not apply to syringes and hypodermic needles containerized for innocuous disposal that satisfies the set standards for sharp waste disposal.

The reason the law exempts needles is to curb the spread of HIV/AIDS, which has been on the upsurge because of sharing needles. With possession of these needles not resulting in arrest, people have no reason to share them, preventing unwanted blood contact that usually leads to the spread of blood-borne diseases.

Even though possessing these drug paraphernalia will not result in direct apprehension, you must prove that a certified doctor or physician prescribed the needles and that you purchased them from an authorized retailer. It would help if you produced the doctor's prescription or receipts from the retailer. If you are requested to provide the evidence, talk to your criminal defense lawyer first to establish the soundness of the demand to produce these documents.

Elements the DA Must Prove

The prosecutor must demonstrate several facts about the crime to convict you. They must prove these facts beyond moral certainty to eliminate any doubts in the minds of the trier of facts. You, the defendant, will also have the chance to poke holes in the prosecutor’s claims and put doubt in the minds of the jury or court that you possessed drug paraphernalia. If the court is not convinced beyond a reasonable doubt that you committed the crime, they will reduce your charges, meaning you will face lenient penalties.

The facts of the crime the DA should establish are:

The Device Associating You With the Crime Qualifies as Drug Paraphernalia

Many items fall under HS 11364’s definition of paraphernalia. These items should unlawfully inject, smoke, or ingest controlled drugs. The items include miniature spoons and pipes. Hypodermic needles and syringes are excluded from the list of paraphernalia when you possess them for individual use and an authorized retailer or medical professional has acquired them.

You should know that items used in the production and sale of narcotics are not prescribed under HS 11364. These items include:

  • Scales and balances for weighing narcotics.
  • Bowls, blenders, and spoons utilized in compounding controlled substances.
  • Capsules and balloons used in packaging or concealing controlled substances.

Possession of these items is not associated with illegal use but with manufacture, as outlined under HS 11351 and HS 11352 instead of HS 11364.

When proving your case, the DA demonstrates that the devices produced as evidence were directly responsible for transferring narcotics from a package or surface into your body. They must practically show how the device ingests drugs.

For instance, when the item found in your possession is a spoon, the DA should demonstrate how you utilized it to consume the narcotics. If the officers do not see you using the spoon to ingest drugs, they will rely on circumstantial evidence, making it challenging to prove the fact beyond moral certainty. The prosecutor even finds it more difficult to demonstrate the point if the item or device in question ingests controlled substances in a fashion unfamiliar to the authorities.

You Controlled or Possessed the Drug Paraphernalia

Even if the DA succeeds in demonstrating that the item you had qualifies as drug paraphernalia, the information will be irrelevant to the case until they show that you had active or inactive control over the device. So, the prosecutor should demonstrate active or contractive control or possession over the devices to secure a conviction.

The DA proves active control by showing the court that the drug paraphernalia was in your immediate person or physical possession. If the item were in your hands or pocket, it would be sufficient to demonstrate active control. The DA will have more compelling evidence if there is proof you were using the instrument by inserting it in your body to ingest narcotics. The evidence the DA relies on to demonstrate active possession is pictures and video footage from the crime scene or testimony from eyewitnesses and apprehending officers.

Constructive control means exercising authority over the paraphernalia, although not in your immediate person during apprehension. Also, if you control the device individually or as a group, you constructively control the paraphernalia.

You should know that if you own paraphernalia and are used to sharing it with others, you could find yourself in trouble if someone borrows it and is arrested. The DA will secure a guilty verdict if they can show that you voluntarily utilized the paraphernalia to ingest harmful drugs or were used to sharing the devices with the purpose of ingesting narcotics.

The Material in the Drug Paraphernalia is a Controlled Substance, Illegal Drug, or Narcotic

Another element the DA must demonstrate is that the substances found in the paraphernalia were controlled substances. The prosecutor demonstrates this element by presenting test results from drug samples showing you had narcotics intake. The test results are not enough. They must be backed by proof that:

  • The samples were gathered from the scene.
  • They were analyzed and tested by qualified drug lab technicians.
  • The substances contained in the samples were narcotics.

The DA proves these by submitting evidence that the tests presented satisfy the testing criteria, contain the lab tech's signature, and have numerical data for the substances in the specimens. If the samples were collected from another scene, the results will not be admitted as evidence against you in court. Demonstrating that the samples are not from your scene is challenging, so your lawyer at the California Criminal Lawyer Group in Fresno must focus on disapproving the prosecutor's assertions to lower the severity of the penalties.

Additionally, the sample components must be:

  • Stimulants.
  • Opiates.
  • Depressants.
  • Hallucinogens.

The most prevalent controlled drugs and narcotics belong to the following categories:

  • Methamphetamine.
  • Mescaline.
  • Cocaine.
  • Morphine.
  • Heroine.

The classification of these drugs depends on their chemical structure and the high they give you.

You must understand that marijuana is not among the controlled substances listed under HS 11364. Offenses involving possession of marijuana paraphernalia are prescribed under Marijuana statutes as the recreational use of cannabis is no longer unlawful.

Penalties for Drug Paraphernalia Possession

A violation of HS 11364 is a misdemeanor, as drug paraphernalia possession is not the same as drug possession. So, the penalties for the violation are more lenient and include no more than half a year in county jail and, at most, $1,000 in court fines.

Furthermore, a guilty verdict or apprehension for the offense can result in professional consequences if you are a license holder. The board overseeing and regulating professional activities can temporarily suspend your sentence for a given duration or until you complete your jail sentence. The professions that attract license suspension are:

  • Medical practitioners.
  • Realtors.
  • Lawyers.
  • Teachers.
  • Other licensed jobs.

Your license will not be automatically reinstated after you complete the suspension period. The board will conduct a new interview and evaluate your progress report. Therefore, it is essential to observe all probation terms to streamline the license reinstatement process.

Parties Exempt From HS 11364 Prosecution

Specific individuals cannot face prosecution for possession of paraphernalia. These are:

  • Law enforcement officers or any party working under their supervision or instructions.
  • Individuals like doctors, pharmacists, veterinarians, producers, wholesalers, and retailers authorized by the state pharmacy board to prescribe, transport, or sell hypodermic needles, syringes, or objects used to ingest controlled substances in the body.

Even these individuals risk prosecution if they possess drug paraphernalia outside of work. For instance, a doctor has a dependence on morphine and sneaks in a hypodermic needle filled with a controlled substance after hours. If the doctor is apprehended with the paraphernalia, they will face charges under HS 11364.

Drug Diversion

You could be eligible for a drug diversion or treatment program besides jail incarceration. The alternative program happens in place of jail incarceration. So, instead of serving time in jail, the court can place you in a drug rehabilitation program if:

  • You did not use physical force or threaten violence at the time of being arrested for possessing drug paraphernalia.
  • You have never been convicted of a drug-related offense before.
  • Your HS 11364 violation charges do not embroil any other breach of drug crime statutes.
  • You have no record of parole or probation violation.
  • You have not undergone a drug treatment program in the past 60 months.
  • In the last 60 months, the court has not found you guilty of a felony crime.

When the court imposes this alternative sentencing, for you to take part in the diversion, you must first plead guilty or no contest. After that, the court gives you time to complete narcotics rehabilitation as a probationary condition. Also, you must agree to random drug testing during the probationary period.

If you successfully finish the diversion program and drug treatment, the judge will throw out or dismiss your HS 11364 violation counts. A breach of the terms of the diversion program can result in probation being revoked and you being sent back to jail to serve the original sentence for your drug crime.

Nevertheless, if your guilty verdict was for an HS 11364 violation and a separate misdemeanor that is not drug-related, like a DUI or a felony, you are ineligible for the diversion.

Fighting Drug Paraphernalia Possession Charges

There is hope for you, even with the severe penalties associated with paraphernalia possession charges. Our lawyers at the California Criminal Lawyer Group in Fresno can craft viable legal defenses for a charge reduction or dismissal. The valid defenses we will utilize to contest the charges are:

  1. The Proof Does not Qualify the Device in your Possession as Paraphernalia

Devices or items described as paraphernalia must be utilized to ingest drugs unlawfully. It is easy to manipulate any device into self-ingesting controlled substances. However, the fact that an item resembles paraphernalia does not make it one or mean you use it for drug consumption. Your lawyer can assert that the device, whether it is a hypertonic needle or syringe, is used to issue prescriptions to your animals.

Again, drug paraphernalia has multiple applications. Therefore, when building your argument, you must base it on the direct use of the device to ingest controlled substances. The DA bears the burden of demonstrating that you directly used the device to administer drugs. If they cannot verify that the device moves drugs from a container or surface into your body, they will not harm your case. Although proving the instrument in your possession is not paraphernalia will not prevent a conviction, it will act as a mitigating circumstance to reduce your penalties.

  1. You Lacked Knowledge that the Item Was Paraphernalia

Your lack of knowledge about the law cannot be a defense against a crime. However, not knowing that the item or instrument in your possession is paraphernalia is a defense. Even when the authorities find the device in your person, but you are not aware of its nature, the trier of fact cannot convict you of an HS 11364 violation because there is no proof of criminal intent to utilize the device to ingest drugs. The defense works best if your charges stem from a situation of constructive possession.

For instance, if you do not use drugs, you cannot be familiar with the ways users use to administer them, even when you come into contact with them. Also, when someone you are living with secretly ingests narcotics using paraphernalia, you could lack knowledge that a particular item they possess is paraphernalia. Therefore, when the charges are based on your association with users, showing a lack of knowledge about the nature of the object can help prevent a conviction. The facts that establish whether you recognize the item are:

  • Your statement of the item's use.
  • A testimony from an expert witness on the item's use.
  • The manner of displaying the device if it was for sale.
  • Whether you have a prior drug-related conviction.

 

  1. You were Unaware of the Drug Paraphernalia's Presence

Another primary element the DA proves to obtain a conviction is awareness of the drug paraphernalia's presence. The judge dismisses your case if there is no proof of knowledge of the item's presence. The court acquits you of the charges if there is proof that a friend borrowed your clothes and left drug paraphernalia in your pockets. If it is a cocaine spoon that was in your vehicle, you can claim that a friend dropped it under the traveler's seat, and you were unaware of its presence. If you were traveling on public transport at the time of arrest, your lawyer would argue that someone slipped the drug paraphernalia in your pocket or belongings to evade an arrest. When your lawyer presents these arguments precisely, your charges will be dismissed or reduced to a lesser offense.

However, for the arguments to hold in court, your lawyer must obtain a court injunction to run forensics on the paraphernalia for fingerprints and DNA. Once they receive the order, they will involve the investigating officers to obtain these samples for analysis. The test results help demonstrate that you did not have any contact with the alleged paraphernalia or that it belongs to another person. Acquiring and testing the samples is cumbersome and expensive, so you should only consider it when you have been misidentified or falsely accused of an HS 11364 violation. If you prove you did not touch the items, the court dismisses the case or lowers your penalties.

  1. You Were Entrapped

Entrapment happens when police take part in behavior that induces or influences you to contravene the law. Even when you have no interest in committing an offense, they can influence you to do so through coercion, false assurances, or harassment. If officers induced paraphernalia possession, your lawyer should demonstrate entrapment to have the case dismissed.

  1. The DA Has Insufficient Proof

The DA must prove all the case’s facts beyond a reasonable doubt to secure a guilty verdict. If one of these elements is not satisfied, you are not guilty. In drug paraphernalia possession cases, not all items that look like paraphernalia are unlawful, meaning that the DA must demonstrate that the items in your possession are used to ingest narcotics. Besides, the prosecutor should prove that you were aware of the device’s nature and used it. If they cannot confirm all these elements, your lawyer should demonstrate that the evidence presented is insufficient to prove beyond moral certainty that you possessed paraphernalia.

  1. The Police Engaged in Misconduct

The law protects you from unreasonable searches and seizures by authorities. The police can only search your property if a valid search is authorized. If they want to make a traffic stop or arrest, they must follow the relevant procedures in the constitution.

Before arrest, the apprehending officer must have probable cause to believe you are committing a drug crime. Additionally, after apprehension, the officer must recite the Miranda rights before interrogating. Again, when searching, the officers can only gather proof of the offense you are suspected of committing.

When officers search your property without valid authorization, even if they find paraphernalia, you can have the case dismissed or reduced because the evidence was obtained illegally. Besides, the court can dismiss your charges if the arresting officers applied excessive force for a body search that resulted in the device finding. You can assert that the police violated the law or did not adhere to the set procedures. Therefore, if there was a violation of your legal rights during apprehension or investigation, mention it to your lawyer so that even if they are unable to dismiss the case, they can use the police misconduct as a mitigating circumstance to have the charges reduced.

Related Crimes

Drug paraphernalia possession under HS 11364 relates to several other offenses. One of these offenses is prescribed under HS 11364.5. Per the statute, it is unlawful to run an outlet warehousing, selling, or displaying paraphernalia with lawful substances. The only exception is if the room in which the paraphernalia is stored is inaccessible to underage people. The penalties for the crime are revocation or suspension of a business license and paraphernalia seizure.

Another related offense is outlined under HS 11364.7. According to the statute, possessing, producing, furnishing, or moving paraphernalia is unlawful when you know or ought to know it will be used illegally. Furthermore, the code section punishes adults for supplying underage persons with drug paraphernalia or having hypodermic syringes and needles on school grounds.

Find a Competent Drug Crimes Lawyer Near Me

Like other drug-related offenses, drug paraphernalia possession is a serious offense because of its life-altering consequences. The stigma and revocation of professional permits associated with the offense can have adverse effects on many aspects of your life. Therefore, when you learn of the charges, immediately talk to an experienced lawyer to defend against the allegations. We can help you acquire a charge reduction or dismissal at the California Criminal Lawyer Group in Fresno. Call us today at 559-712-8377 for a no-obligation consultation.