Possession of Drug Paraphernalia
San Diego Drug Crime Lawyer
In California, the crime of Possession of drug paraphernalia is punished by California Health and Safety Code §11364, which states in relevant part:
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 in the city, for the period commencing January 1, 2005, and ending December 31, 2010, 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.
Controlled substances applicable under this section include opiates, cocaine based stimulants, amphetamines, hallucinogenic substances which include mescaline, peyote, tetrahydrocannabinols and any associated derivatives.
Paraphernalia is now considered to be virtually any item that would enhance or enable the use, transporting, packaging, measuring, preparing, processing, concealing, storing or anything the court may find aided in an illegal use of the drug. Even simple household items, such as Ziploc bags, blenders, or bowls may be alleged as violations under Health and Safety Code §11364 provided drugs or drug residue are found as well. Given the wide scope of devices associated with drug use and/or drug sales, broad discretion is afforded to law enforcement under HS §11364 when determining charges to bring with regards to Possession of paraphernalia.
Charges for Possession of Drug Paraphernalia
An individual arrested under HS §11364 may be facing either a misdemeanor or a felony, as will depend on the circumstances of each case. The punishment can range from probation, to a loss of your business license, to up to 3 years in state prison for the paraphernalia charge alone if accompanied by other serious drug offenses. The potential punishment will depend on whether the paraphernalia is found to be for use or for sale, if there were actual drugs found during the arrest, the type of drug, the amount of drug, and the past criminal history of the individual.
To prove that an individual is guilty of possessing drug paraphernalia, the prosecution must prove each one of the following elements:
1. The individual unlawfully possessed an object that can be used to enable the unlawful use of a controlled substance; be it from packaging, measuring, injecting, smoking etc.;
2. The individual knew of the object presence; and
3. The individual knew that the object could be used to of the potential for the unlawful use of the object with regards to the drug.
Prior even to challenging the prosecution's case on the merits, you may also be able to challenge the admissibility of the alleged paraphernalia or controlled substance found during an improper arrest. Officers must abide by particularly strict constitutionally protected guidelines that govern all searches of persons or property, seizures of contraband, and arrests. Though the prosecution's entire case may hinge on the admissibility of improperly seized evidence, it may not be used against you provided your defense meets the burden of proving that the officer's conduct violated constitutional guidelines. It is in your best interest to hire an aggressive yet tactful attorney with the skills necessary to challenge the conduct of law enforcement, and sc which some courts may otherwise have an unspoken tendency to endorse unless such challenges are made.
More often than one would imagine, diseased patients requiring possession at all times of syringes or other medicinal tools are arrested under HS §11364 if they do not provide adequate documentation to law enforcement upon request. While you may be charged under this section for the failure to provide such documentation, you cannot be convicted provided you are able to prove to the court that you had proper permission at the time from a physician licensed to prescribe prescription drugs in this state.
While marijuana paraphernalia is excluded under this section without actual possession of marijuana, additional issues do arise with regards to the paraphernalia used for the purpose of using, growing or selling. Despite the passage of Proposition 215, legitimate medicinal marijuana patients, growers, and distributors often surprised to find themselves prosecuted under this section as well. While it is within their rights to possess and utilize tools necessary to use, grow, and distribute marijuana under California Law, because the law is still unsettled in the eyes of many law enforcement officers, prosecuting attorneys, and even in some courts, charges are still filed and criminal proceedings instituted against them.
If you are arrested and charged under HS §11364, it is imperative that you obtain an experienced and knowledgeable San Diego drug crime lawyer to increase your chances of minimizing the penalty, or having the charged dismissed altogether provided a proper case can be made to negate the applicability of the offense to your alleged conduct. Attorneys at The Law Office of Marc S. Kohnen have years of experience aggressively and passionately fighting for individuals accused of all drug offenses, including possession of drug paraphernalia. If you or a loved one has been arrested and charged under HS § 11364, call the office today for a free initial consultation.
Contact a San Diego drug crime lawyer today to find out what you can do to fight charges for possession of drug paraphernalia.