§ 11364 HS – Possession of Drug Paraphernalia in California

California Health & Safety Code § 11364(a) HS makes it a misdemeanor to possess drug paraphernalia, with penalties of up to six months in jail and/or $1,000. A conviction can also result in the suspension of your professional license (such as for teaching, contracting, practicing law, being a real estate agent, etc.).

The full language of 11364 HS reads:

(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, 2026, 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.

In this article, our California criminal defense attorneys address the following topics re. possession of drug paraphernalia:

• 1. Elements of 11364 HS
• 2. Defense
• 3. Penalties
• 4. Related Offenses
• Additional Resources

1. Elements of 11364 HS

To convict you of possession of drug paraphernalia, prosecutors must prove beyond a reasonable doubt the following three elements of California Jury Instructions “CALCRIM” 2410:

1. You exercised control over drug paraphernalia;
2. You knew of the paraphernalia’s presence; and
3. You knew the paraphernalia’s purpose was for using controlled substances.¹

Below we discuss in detail these elements of 11364 HS as well as exceptions.

Meaning of “Control”

Control of drug paraphernalia may be either “actual” or “constructive.”

Actual control is when you physically carry the paraphernalia on your person. For example, you actually control a pipe for smoking crack cocaine when you keep it in your pocket.

Meanwhile, constructive control is keeping the paraphernalia in a location that you control, such as your bedroom dresser or a storage unit.²

Meaning of “Paraphernalia”

The term “paraphernalia” refers to a variety of items that are used for unlawfully injecting, smoking, or otherwise consuming controlled substances. Some examples include meth pipes, crack pipes, and heroin needles.³

Note that until 2026, you may possess hypodermic needles and syringes in California if you acquired them solely for your personal use from a physician, pharmacist, needle or syringe exchange program, or any other source authorized by law to provide sterile syringes or needles without a prescription.⁴

Example: Steve is a heroin user and regularly visits an authorized source for a needle exchange for free clean needles.

If Steve is caught with heroin, he could be charged with simple possession of a controlled substance under 11350 HS. Though if he is caught with needles he got from the exchange, he will not face charges for possession of drug paraphernalia under 11364 HS.

Also, 11364 HS does not cover items that are more often associated with the manufacture and sale of drugs, such as:

• scales and balances used to measure and weigh drugs,
• blenders, bowls, spoons, and other mixing devices used to compound controlled substances, and
• capsules, balloons, and other containers used to conceal or package drugs.

When police find these items, the suspects will more likely face drug charges for possession for sale (11351 HS) or transporting or selling (11352 HS).

Meaning of “Controlled Substances”

Controlled substances are narcotics regulated by the government due to their potential for abuse. Classified as schedule I through V, they typically include:

• stimulants,
• depressants,
• hallucinogens, and
• opiates.

Some of the most commonly used controlled substances within these categories include methamphetamine, heroin, cocaine, and PCP.⁵

Note that 11364 HS excludes marijuana paraphernalia. With the passage of Proposition 64, most personal use of recreational marijuana is lawful under California law.⁶

People Exempt from Prosecution

The following people are exempt from prosecution for possessing drug paraphernalia under 11364 HS:

• police officers or anyone working under their immediate direction or supervision, and
• pharmacists, doctors, dentists, podiatrists, veterinarians, as well as manufacturers, wholesalers, and retailers, who are licensed by the California State Board of Pharmacy and prescribe, sell, or transfer hypodermic syringes, needles, or other objects intended for use to inject drugs into the body.⁷

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with drug crimes including paraphernalia possession. In our experience, the following five defenses have proven very effective with judges and prosecutors at getting 11364 HS charges dismissed.

1) There Was No Possession

If you did not have control over the paraphernalia, then you did not possess it. For example if you go to a party and talk to someone holding a meth pipe, you should not be prosecuted for possession because you have no actual or constructive control over the pipe.

2) There was No Paraphernalia

Just because an object looks like something that can be used to inject or consume illegal drugs does not mean that it actually is.

Maybe it is a tool you use to administer prescription drugs to your sick or injured animal. Or maybe it is a pipe that you use to smoke tobacco, which is lawful.

3) You Did Not Know the Object Was Paraphernalia

Even if the police do find drug paraphernalia in your possession, you committed no crime if you did not know it was paraphernalia.

To determine whether you knew an object was “drug paraphernalia,” the court will consider:

• any prior drug-related convictions,
• your statements concerning its use,
• expert testimony concerning the object’s use, and
• how the object was displayed for sale (if applicable).”⁸

4) You Did Not Know About the Paraphernalia’s Presence

You cannot possess drug paraphernalia if you are unaware it is there. There is an infinite number of instances where this defense could be applicable, such as:

• Someone borrowed your jacket and left a pipe in the pocket.
• Someone left his cocaine spoon in your car under the passenger seat.
• Someone placed a vial in your purse to avoid being caught themself.

5) The Paraphernalia Was Found During an Unlawful Search

Sometimes, drug paraphernalia is discovered during an unlawful search and seizure. This could doom the prosecution’s case against you.

Example: The police pull Karina over for speeding. Without any justifiable reason for doing so, they have her exit the car so that they can conduct a search and find a cocaine pipe under her seat.

Because the paraphernalia was discovered during an unlawful search, Karina’s California criminal defense lawyer should win a motion to suppress it as evidence. This may lead to a dismissal of the charges.

3. Penalties

Possessing drug paraphernalia is a misdemeanor in California. The following table shows the potential sentence.⁹

11364 HS Punishments in California
Fines	Up to $1,000
Jail	Up to 6 months

In addition, a conviction of 11364 HS – or for that matter, even an arrest for this section – could lead to professional repercussions for those who hold professional licenses. For example, teachers accused of violating this law may be placed on an immediate leave of absence pending the resolution of the charge(s).

The L.A. County D.A.’s office generally does not prosecute 11364 HS cases.¹⁰

Am I eligible for drug diversion?

Drug diversion is a type of alternative sentencing where you complete rehabilitation in lieu of jail. You may be eligible if you plead guilty or no contest to a non-violent drug possession/use crime such as 11364 HS.

Drug diversion is available under

• California Proposition 36 and
• Penal Code 1000 PC  (“deferred entry of judgment” program).

The judge orders you to complete drug rehabilitation as a condition of your probation. You will likely be subject to drug testing as well.

Upon your successful completion, the judge dismisses your drug paraphernalia possession charge. Otherwise, the judge may remand you to jail.

Note that you are ineligible for diversion if you are simultaneously convicted of both 11364 HS and

• a felony or
• a misdemeanor other than simple drug possession or use, such as driving under the influence of drugs).¹¹

4. Related Offenses

The California crime of drug paraphernalia possession under 11364 HS is closely related to the following offenses.

Health and Safety Code 11364.5 HS

Health and Safety Code 11364.5 HS prohibits operating a business where drug paraphernalia is

• stored,
• displayed, or
• sold for use with

lawful substances except when it is kept in a room inaccessible to minors (persons under 18) who a parent does not accompany.

If guilty of this offense, the owner does not face criminal penalties but can lose their California business license or permit. Additionally, any drug paraphernalia will be seized by and forfeited to the state.¹²

Health and Safety Code 11364.7 HS

Health and Safety Code 11364.7 HS prohibits people from

• possessing,
• furnishing,
• transporting, or
• manufacturing

drug paraphernalia when they know – or reasonably should know – that the paraphernalia will be used in connection with illegal drug use or sales.

This section additionally punishes adults who

1. furnish minors with paraphernalia, or
2. possess hypodermic needles on school grounds intending (or knowing) that a minor will use the needles to inject illegal drugs.

Depending on the exact violation, violations of 11364.7 HS (a more serious offense than paraphernalia possession under 11364 HS) may be charged as either:

• a misdemeanor carrying up to 1 year in a county jail and a maximum $1,000 fine, or
• a felony punishable by 16 months, or 2 or 3 years in the California state prison and a maximum $10,000 fine.¹³

Health and Safety Code 11365 HS

Health and Safety Code 11365 HS makes it a crime:

• to be present while someone else is using controlled substances and
• to aid and abet their controlled substance use.

This misdemeanor carries a potential jail sentence of up to six months.¹⁴

It may be charged along with possession of drug paraphernalia if, for example, you are found in possession of paraphernalia that is being used – or about to be used – by someone else.

Additional Resources

If you or a loved one is struggling with addiction, refer to the following:

• Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
• Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
• Recovery Village – Support group for families of people struggling with drug addiction.
• Drug Addiction – Mayo Clinic article on diagnosing Substance Use Disorder.
• I Need Help With Drug Addiction – Resources provided by Recovery Centers of America.

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