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POSSESSION OF DRUG PARAPHERNALIA (Health & Saf. Code, § 11364)

 

To prove you guilty, the prosecution must prove that:

  1. You possessed an object used for unlawfully injecting or smoking a controlled substance;

  2. You knew of the object’s presence; AND

  3. You knew it to be an object used for unlawfully injecting or smoking a controlled substance.

Key Element to Win Case: Element 2 (whether you KNEW of the object's presence)

Note:

  • Two or more people may possess something at the same time.

  • A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.

Common Case Scenario

A suspect is pulled over for a random traffic violation, the officer gets consent or has some other legal basis to search suspect's car and finds a meth pipe and seizes it. The prosecution will look to see whether the suspect admitted it was his pipe. Even if the suspect denies it, the DA will rely on all the surrounding circumstances to infer guilt -- for example, the car is registered to the suspect, he was alone, it was in the center console and easily seen, etc. The more circumstances, the harder it is to argue that you did not know of the object's presence.

What If You Weren't Alone?

It is very common for meth pipes and other paraphernalia to be found in a spot where multiple suspects are located. For example, in the above example, say the suspect has a passenger in the car and the pipe was found on the passenger floor board or behind one of the seats. Assuming the driver claimed ignorance when questioned by police about this pipe, the prosecutor now has a tougher job to prove the suspect driver knew of the object's presence (element 2 of the offense).

But remember, to be guilty, the item does not need to be in your pocket or bag; as long as you had access to it and the right to control it, that's considered possession. And, again, two or more people can possess something at the same time. So, if the circumstances suggest both the suspect and passenger knew about the pipe (in the scenario above), then the DA is going to file the case and the suspect will have to decide whether to fight the case in court.

Other Defenses...

  • Cannabis Paraphernalia Excluded

    • Possession of a device for smoking cannabis, without more, is not a crime. (In re Johnny O. (2003) 107 Cal.App.4th 888, 897.)

  • Authorized Possession of Syringe for Personal Use

    • It is not unlawful to possess [a] hypodermic (needle[s]/[or] syringe[s]) if you were legally authorized to possess (it/them) meaning you obtained (it/them) from a source authorized by Health & Safety Code section 11364(c).

Punishment If Convicted

The maximum punishment is up to 180 days county jail (90 actual days with credit), but judges are not typically heavy handed with this type of offense. 

The great news about this offense is that, for many people, you can qualify for what's known as "pre-plea diversion," which consists of agreeing to complete drug education classes in order to get your case dismissed. This is a really good option for many who are concerned about having a drug conviction on their record. As a technical matter, you don't have to plead guilty (which is why it's called "pre-plea"); instead, the court simply suspends your case (generally for a period of 18 months) and orders you to complete drug counseling at the direction of the Probation Department.

 

Note that you're not actually on probation (because that would require you to be convicted of an offense); however, as a practical matter, being on diversion is essentially like being on probation because the Probation Department is the agency that will monitor whether you successfully complete the classes or program. Additionally, you would be subject to search and seizure by law enforcement as well as subject to drug testing, if requested by anyone in law enforcement. However, police are not typically going to your home to search you; this generally only arises from traffic stops on the road.

The amount of classes and amount of time the program will last depends. At a minimum, I would expect at least a 90-day program where you're required to attend classes 1-2 days per week.

At the end of it all, if you stay out of trouble during this time, your case gets dismissed and you don't have to come back to court. However, if you mess up during the program, your case will get re-opened and you'll need to address the charge(s) all over again. The bad news is you will no longer have a right to a jury trial; only a right to a trial by a judge. That's because to do pre-plea diversion, you have to agree to give up your rights to a speedy trial and a trial by jury. The bottom line is that it's in your best interest to do the classes and get your case dismissed.

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Full Statute:

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 that 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) 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.

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