Under California law, possession of drug paraphernalia involves possessing items used in smoking or injecting controlled substances like heroin and cocaine. Under Health & Safety Code 11364 HS, the law prohibits any instrument, material, or devices used in smoking or injecting controlled substances. If found in possession of drug paraphernalia unlawfully, the penalties may be stiffer.

However, being under arrest doesn't mean you are guilty of the offense. When law enforcement officers arrest you for the crime around or in Orange County, you should consult our aggressive and determined criminal lawyers. At Orange County Criminal Lawyer, we have the experience and knowledge in dealing with criminal cases. We will fight your charges and protect your rights by building a strong legal defense.

Legal Definition for Possessing Drug Paraphernalia

Drug offenses involve not only usage, sale, and possession of the controlled or illegal substances but also ownership of the items used to inject, ingest, or smoke the substances. When the defendant is arrested for possessing drug paraphernalia, they will face charges under HSC 11364. Under the law, possessing opium pipes, equipment, or an apparatus used to inject controlled substances is a crime.

However, the law considers specific controlled substances. The substances include opium derivatives, depressants, cocaine, opiates, hallucinogenic substances, among others.

The possession of paraphernalia law doesn't prohibit possession of needles and syringes only when packed in containers safe for disposal. HSC 11364 doesn't prohibit possession of hypodermic syringes when given by physicians or pharmacists lawfully allowed by the authority to offer sterile needles.

Constitutes of Drug Paraphernalia

The following are the constitutes of drug paraphernalia under California law:


Pipes involve any pipes which can be used in smoking controlled substances. They include hashish pipes, cocaine pipes, crack pipes, or opium pipes. The tubes may be made from stones, ceramic, glass, plastic, wood, acrylic, or metal.

Weighing Scale

Having a kitchen scale for weighing your ingredients is a legitimate use. However, your drug becomes drug paraphernalia when controlled substances are discovered in your home. Law enforcers may conclude you used the scale in measuring controlled substances like heroin, leading to your arrest for possession of drug paraphernalia.

Rolling Papers

Rolling papers are another drug paraphernalia with both illegal and lawful uses. However, when your rolling papers are for smoking tobacco, you haven't violated the law. If following a legal procedure, the defendant is found with illegal substances; they are chargeable with drug paraphernalia, among other drug offenses.

Water Bongs

The products are initially designed for specific functions, for instance, storage of water. When the defendant uses the bong in ingesting controlled substances, then the bongs qualify as drug paraphernalia. Under California law, it counts a crime with illicit substances in your bong.

Plastic Baggies

Plastic baggies could be used as drug paraphernalia when used in stashing heroin or cocaine. When a legal search finds you with illicit substances, you will be charged for violating the law.

How To Determine What Constitutes Drug Paraphernalia

It may be time-consuming to decide if an item, apparatus, or tool makes up drug paraphernalia. The police and prosecution team may consider different relevant and logical factors ruling whether used as drug paraphernalia. The factors may include:

  • Menus, descriptive materials, or instructions which comes with the product illustrating its usage
  • Manufacturers wrote oral descriptions or printed coming with objects concerning their primary purposes.
  • The evidence is linking the lawful uses of type products in society.
  • Experts' testimonials of the object reveal the object's purpose as legitimate and not as drug paraphernalia.
  • The style of display or marketing used by the marketers’ seller
  • Information is published in visual or print forms through national and local advertisements concerning the product’s usage.
  • Whether the person possessing or controlling the item is a genuine supplier in society. for instance, a vendor of rolling tobacco papers or an authorized dealer

Elements Which the Prosecution Must Prove in Possession of Drug Paraphernalia

Before the defendant faces conviction for possessing paraphernalia, the prosecutor must prove several aspects of the crime. Before the defendants face conviction, the following elements should be proved beyond the shadow of a doubt:

  1. You Had Control Over the Drug

The defendants to face conviction, they must have been aware the drug paraphernalia was present during their arrest period. Additionally,  they must have known the object they possessed was drug paraphernalia. In California, the court will consider both constructive and actual possession of the drug.

  • Constructive Possession

Under constructive possession, the defendant doesn’t need to have the physical possession of the drug. Additionally, if the defendant is in control of the apparatus, then they violate the law. Notably, under constructive possession, the defendant can possess the product physically. Thus, the item is still theirs.

The investigators will need to connect the dots to confirm the defendant can use the paraphernalia, even when they had no physical contact with the item at their arrest time. Additionally, if the defendant was in the company of his/her friends having the drug, the defendant will face the charges since he/she may have the item when they wish.

  • Actual Possession

Actual possession involves the physical possession of the item. For instance, if you have cigarette folding papers in your pockets and traces of cocaine, you violate the California law.

  • Joint Possession

A joint position is an extension of both constructive and actual possession; two people have ownership of the drug paraphernalia. Joint possession will occur if a drug is discovered in a shared location, and the involved parties have constructive possession. For instance, if the defendant pooled money with their friend to purchase a controlled substance, they will be charged with joint possession.

  1. You were Aware the Paraphernalia was Present

Under California HS 11263, drug paraphernalia involves different items used for illegal injecting, smoking, or any other method of consuming controlled substances or narcotic drugs. Therefore paraphernalia isn't limited to tiny cocaine pipes and spoons. However, possession of the items is excluded when:

  • The defendant obtained the needle or syringe from the pharmacist, exchange program, physician, or any source authorized to provide syringes or sterile needles.
  • The devices are exclusively for personal use.

However, the California HS 11364 doesn't cover products used in manufacturing or selling drugs. For example:

  • Bowls, spoons, blenders, or other mixing tools that are used in mixing controlled substances.
  • Capsules, balloons, and other holders that are used in packaging or conceal drugs.
  • Scales and balances that are used in measuring and weighing drugs.

Therefore, possessing items associated with the illegal manufacturing or selling of controlled substances is an offense under California HS 11351. If the defendant had the above items, he/she would face conviction.

  1. Intent, Design, Or Use of Drug Paraphernalia

Most of the products designed for illegal consumption have other legal uses in California. The items might be for smoking or injecting other unlawful substances. The prosecutor should prove the defendant planned to use the tools on drug paraphernalia or use them in consuming controlled substances.

Penalties For Possession Of Drug Paraphernalia in California

In California, violating drug paraphernalia law is considered a misdemeanor. Once the prosecutor convinces the jury that you are guilty, you should  face the following penalties:

  • A fine not exceeding one thousand dollars
  • The sentence for half a year in county jail
  • Probation

A probation sentence is applicable to the defendant's possessing drug paraphernalia charge. When the defendant is sentenced to probation, the court requires your compliance with the provided orders for 12 months or more. In California, you face common probation orders, including participating in a drug treatment program, random drug tests, paying all required fines, and court costs performing community service.

Additionally, you face the following non-criminal consequences:

  • Change in visitation rights
  • Loss of professional license
  • Change in child custody
  • Forfeiture of government benefits

Alternative Sentencing For Possession Of Drug Paraphernalia

After you face the conviction of possessing drug paraphernalia, you may be eligible for drug diversion as an alternative way for sentencing. When the crime charged was the first time, the program will allow you to avoid prosecution after completing the drug treatment program.

Under drug diversion, you will receive drug rehabilitation instead of jail time when you commit a non-violent drug possession, drug use, including HS 11364. The defendant will enter a nolo-contendere plea pleading their criminal charges. The defendant won't plead not-guilty or guilty rather accept the penalties.

Therefore, the court will sentence the defendant to a drug diversion for a certain period, and they will undertake drug tests too. The defendant's case will be dismissed after the completion of their rehabilitation program. However, if the defendant fails to complete their diversion program, the judge has a right to sentence them to prison. In case the defendant was charged with violation of drug paraphernalia, which is a misdemeanor offense not related to drug offenses or drug crimes, the jury will disqualify them from having a drug diversion as an alternative.

The defendant will be eligible for the alternative when:

  • They haven't had parole revoked.
  • The defendant has never faced a conviction of committing a drug possession or using threats of violence.
  • They have not undergone a drug rehabilitation program in the prior five years.
  • The defendant doesn't have records of a felony criminal conviction in the previous five years.
  • The defendant's possession charge doesn't include narcotics.

Possible Legal Defenses for Possession of Drug Paraphernalia Charges

Any person accused of possessing drug paraphernalia has a right to a defense against the crime. With the help of a competent lawyer, it will be possible to challenge the prosecutor at the court. Notably, the stronger your arguments are, the more difficult the prosecution is to build a case against you. Possible legal defenses for HS 11364 are:

  1. No Possession of The Drug

The defendant can fight possession of drug paraphernalia charges by claiming they didn't possess the drug. For you to face conviction, the prosecution must verify to the jury you possessed or had control of the drug paraphernalia. If the defendant lacked possession or control over the drug, they couldn’t be convicted of the crime. Possession can either be constructive or actual.

The prosecution may accuse you of constructive possession of the drug when the paraphernalia is within your control or dominion. For instance, if the drug paraphernalia is discovered in a kitchen you share with other people, you can deny possession of the drug. You may argue the drug may belong to the other occupants.

  1. Illegal Seizure and Search

Every citizen in California is granted the constitutional right from illegal seizure and search in the fourth amendment rights. The defendant can fight the charges of possessing drug paraphernalia when they feel the police subjected them to illegal seizure and search. Arresting officers should comply with the legal procedures while making an arrest. Additionally, the law enforcers must have a warrant before searching your vehicle or house.

Once the court declares you are possessed subject to illegal search or seizure, they may dismiss your charges. Additionally, suppose the evidence against you was obtained through unconstitutional means. In this case, your defense attorney should prove it before the court and the evidence removed. Therefore once the evidence is removed, the charges will be dismissed.

  1. The Item Possessed Wasn't Drug Paraphernalia

You may argue the device or object possessed resembled or looks like drug paraphernalia. An object resembling drug paraphernalia could be one that you use when administering medicine to your pets. The prosecution team must prove the defendant possessed drug paraphernalia and not objects resembling the drug. Perception of certain devices as drug paraphernalia doesn't give the prosecution right to assume the device was paraphernalia. However, unless the prosecutor proves you possess drug paraphernalia, you won't face the crime charged.

  1. Lack of Knowledge

The defense of lack of knowledge may be applicable under two instances. First, the defendant may argue he/she wasn't aware of the item they possessed was drug paraphernalia. California law states that if you are unaware that the object you possessed was paraphernalia, the court cannot convict you. If you are a first time offender with no criminal history, the defense may work well.

To determine whether you knew the item was paraphernalia, the court should consider if you have prior drug convictions. Once the defendant has previous convictions, the chances of conviction are high.

The defendant may assert they were unaware of the presence of the drug paraphernalia. Even when the law officers discover you in possession of the drug, you have a right to acquittal if you didn't know you possessed the drug. For instance, the defendant borrowed their friend's clothes, and the drug paraphernalia was in the pocket without the defendant’s knowledge.

  1. You Had Lawful Authorization to Possess the Items

Possession of hypodermic needles and syringes is associated with heroin use. However, someone might be using the items in treating certain diseases like diabetes. The defendant can legally possess syringes and hypodermic needles when:

  • The needles or syringes are for personal use.
  • The defendant obtained the items from authorized sources.

For you to face conviction, the prosecution must prove the defendant’s possession was unlawful. However, your defense lawyer may argue the items were for medical use from authorized sources.

  1. Insufficient Evidence

For the defendants to face conviction, their charges must meet all the elements of the crime. The prosecution team must prove the devices were for injecting, smoking, or any other way of using the drug. Additionally, the prosecution must prove the defendant used the devices for drugs or recognized it as paraphernalia. If the prosecutors fail to prove their evidence against you, your attorney may argue the case doesn't meet all the specific crime elements. Therefore against you will be insufficient or unsubstantial leading to the dismissal of your case.

  1. Police Entrapment

Entrapment is applicable when the law enforcement officers or government agencies encourage you to violate the law when your wish wasn’t to participate. The police officers may involve in behaviors like using harassment, false assurance, or under pressure. The defendant may use the defense when crime originated from the police and not them.

  1. You are a Doctor, Manufacturer, Retailer, or Pharmacist of The Drug Paraphernalia

Pharmacists, nurses, and doctors are exempt from possessing drug paraphernalia conviction under HSC 11367. Additionally, retailers and manufacturers have licenses for dealing with drug paraphernalia. Therefore, if the arrested person under the above groups, they will not face a conviction for possessing the paraphernalia.

Offenses Related to Possession of Paraphernalia

Several drug crimes relate closely to possession of drug paraphernalia. They include:

  1. Business Possession with Paraphernalia HSC 11364.5

It’s an offense to maintain a business where you display, store, or sell paraphernalia with lawful substances. However, an exception might be when you keep the products in a room without minors. Once the court convicts you of the crime, you may not face any criminal penalties, but you will lose your business permit.

  1. Transportation and Manufachernalia HSC 11364.7

According to the law, producing, possessing, or supplying paraphernalia with knowledge, the drug will be used in consumption or sale is an offense. Adult supplies or minors with the drug or possessing syringes or needles, knowing the children might use the drug to inject. The defendant is punishable under this code.

Violating HS 11364.7 is more grievous than the possession of drug paraphernalia. Under California law, the offense is a wobbler with penalties depending on the specific violations. When the crime is a misdemeanor, the punishment is fine not exceeding $10,000, or maximum imprisonment of one year. Alternatively, when a felony, the offense is punishable by imprisonment of up to 3years or a fine up to ten thousand dollars.

  1. Abetting or Aiding Controlled Substance Use, HSC 11365

The law prohibits you from being present if someone else uses paraphernalia or an instrument to consume a controlled substance. Notably, you may be arrested for being in the wrong area at the wrong time. However, the prosecutor may lack evidence to prove you were under the influence or possession of an illegal substance.

When charged with the offense, the punishment includes jail for up to 180 days, summary probation, and a fine not exceeding one thousand dollars. The law is very similar to HS 11364, in that both persons are eligible for drug diversion programs. Notably, the program will allow the suspension of charges as you undergo drug rehabilitation. When the defendant completes the program, the charges will be dropped.

  1. Possession of Controlled Substances HSC 11350

Under California law, various drugs are considered controlled substances. The drugs include peyote, heroin, opiates, cocaine, etc. it will be a crime when possessing controlled substances either through constructive or actual possession. However, the prosecution must prove you unlawfully had the drugs, and the possessed amounts were usable, you knew about possessing. The punishment for the crime will include imprisonment for up to 3 years for a felony charge. Additionally, the provision of diversion programs is applicable.

Persons Exempted From Prosecuted for Possessing Drug Paraphernalia

Under California HS 11267, the law exempts certain groups of people from the trial. The persons are any legalized person by the California state board of pharmacy to sell or use prescribed hypodermic syringes and needles for injection drugs in the body. The persons include veterinarians, medical equipment suppliers, manufacturers, and dentists, any person, including police operating under orders.

Contact A Criminal Lawyer Near Me

Possession of drug paraphernalia has significant consequences, whether charged as a misdemeanor or felony. You may spend several months in jail or pay fines in addition to a stain in your criminal records.

At Orange County Criminal Lawyer, we fight to avoid harsh penalties or have your charges dropped, and obtain possible outcome to your case. If you are in Orange County, call us at 714-262-4833 for your case review and free consultation. We will inform you of your rights, address your concerns, and start building a solid defense.