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Health and Safety Code 11364 – Possession of Drug Paraphernalia

11364. (a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e) or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V. (b) This section shall not apply to hypodermic needles or syringes that have been containerized for safe disposal in a container that meets state and federal standards for disposal of sharps waste. (c) Pursuant to authorization by a county, with respect to all of the territory within the county, or a city, with respect to the territory within the city, for the period commencing January 1, 2005, and ending December 31, 2018, subdivision (a) shall not apply to the possession solely for personal use of 10 or fewer hypodermic needles or syringes if acquired from an authorized source. (d) This section shall be inoperative until January 1, 2015.

This code section makes it illegal to possess any type of device which is used to aid in drug consumption such as a pipe or other smoking devices, injection equipment, or any other instrument designed for this purpose.

Potential sentence: Upon conviction for this crime (a misdemeanor) the defendant may receive up to six months in a county jail and a maximum fine of $1,000.

To obtain a conviction for this offense, the prosecution is required to prove:

  1. Unlawful possession by the defendant of an instrument used to smoke or inject a narcotic.
  2. Knowledge by the defendant that the object was present AND…
  3. Defendant's knowledge that the instrument's purpose was for the illegal ingestion of a narcotic substance.

Explanation of the Law:

  • Unlawful Possession: More than just one person can be considered in possession of drug paraphernalia at the same time. Additionally, possession can be actual (i.e. on the person) or constructive (somewhere within their control). People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162].
  • Number of Items: Where the prosecution alleges that the defendant possessed various pieces of illegal paraphernalia, the jury must find that the defendant possessed at least one of them and they jury must agree on which items the defendant possessed. i.e. if the defendant possessed a crack pipe and an opium pipe, the jury must all concur that he possessed one of these, or both of them.

Defenses:

  • Authorized possession for personal use: The prosecution is required to prove beyond a reasonable doubt that the defendant did not have legal authorization to possess needles used for injection. If they cannot prove this, there must be an acquittal in the case. As “authorized possession” is an affirmative defense. People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045; 274 Cal.Rptr. 17. To utilize the defense, counsel must prove three elements:
  • The needles were in possession for personal use
  • They were obtained from a legal (authorized) source
  • There were no more than ten needles in possession.
  • 4th Amendment Violation: If police obtained the paraphernalia evidence without complying with Constitutional rights, the search can be challengedin an attempt to exclude the illegally obtained evidence.
  • No Knowledge: If a defendant lacks knowledge of the item's presence or of it's nature as an illegal piece of drug paraphernalia, this fact can negate a required element of the offense. The effect of this would preclude the prosecutions ability to prove the case beyond a reasonable doubt.
  • No Possession: Like the “no knowledge defense”, if it can be shown that the defendant did not have actual or constructive possession over the object, he or she cannot be convicted of the crime. An example would be where a defendant drove a friend's car and unbeknownst to him, a crack pipe was under the seat. If a traffic stop occurs and the police find the pipe as the result of a legal search and seizure, the defendant can argue that since he does not own the car, and was unaware of the paraphernalia, he neither had it on his person nor was able to exert control over it.
  • No paraphernalia: Many different objects can serve as drug paraphernalia. However, the prosecution must prove that the object is intended to serve the purpose of consuming drugs. If an object's purpose is uncertain, the defense can fight this element of the defense to prevent the prosecution from proving its case.

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