Código de Salud y Seguridad § 11364 HS – Poseer Parafernalia de Drogas en California

 

The prosecutor must provide the following to convict you of possession of drug paraphernalia under HS 11364:

• You possessed an item,
• The item was drug paraphernalia, and
• You knew or reasonably should have known that the item was drug paraphernalia.

The legal definition of “drug paraphernalia” is any equipment, product, or material of any kind that is used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. ³

This definition is broad enough to include many items that are not obviously drug paraphernalia. For example, a soda can with a false bottom that is used to store drugs is considered drug paraphernalia. ⁴

But the definition of drug paraphernalia does NOT include 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. ⁵

In addition, the definition of drug paraphernalia does NOT include items used for legal purposes, such as:

• Products sold in a store that are used for growing plants, such as fertilizer or hydroponic equipment,
• Products sold in a store that are used for smoking tobacco, such as pipes or rolling papers, or
• Products sold in a store that are used for smoking legal herbs, such as a hookah.

Example : Maria is a tobacco smoker and has a pipe that she uses to smoke tobacco. She also has a pipe that she uses to smoke methamphetamine. If she is caught with the methamphetamine pipe, she could be charged with possession of drug paraphernalia. But if she is caught with the tobacco pipe, she will not face charges for possession of drug paraphernalia.

2. How can I fight an 11364 HS charge?

There are several legal defenses to a charge of possession of drug paraphernalia under HS 11364. The best defense for you will depend on the specific facts of your case.

Some of the most common defenses include:

• The item in question was not drug paraphernalia,
• The item was not yours,
• You did not know that the item was drug paraphernalia, and
• The police discovered the item during an illegal search or seizure.

The item in question was not drug paraphernalia

The prosecutor must prove that the item you possessed was drug paraphernalia. If the item was not drug paraphernalia, you should not be convicted of possession of drug paraphernalia.

For example, if you are charged with possession of a pipe that you used to smoke methamphetamine, you could argue that the pipe was not drug paraphernalia because you used it to smoke legal herbs.

The item was not yours

If you did not possess the item, you should not be convicted of possession of drug paraphernalia. This defense is common in cases where the item was found in a car with multiple occupants or in a house with multiple residents.

You did not know that the item was drug paraphernalia

If you did not know that the item was drug paraphernalia, you should not be convicted of possession of drug paraphernalia. This defense is common in cases where the item was found in a shared space, such as a living room or kitchen.

The police discovered the item during an illegal search or seizure

If the police discovered the item during an illegal search or seizure, the evidence should be excluded from your case. This defense is common in cases where the police did not have a warrant or probable cause to search you or your property.

3. What are the penalties if I’m convicted?

Possession of drug paraphernalia under HS 11364 is a misdemeanor . The penalties for a conviction can include:

• Up to six months in county jail, and/or
• A fine of up to $1,000.

3.1. Am I eligible for drug diversion?

Possession of drug paraphernalia is a crime that is eligible for pretrial diversion . This means that if you are charged with possession of drug paraphernalia, you may be able to avoid a conviction by completing a drug treatment program.

If you successfully complete the program, the charges against you will be dismissed. This can be a good option for people who are struggling with drug addiction and want to avoid a criminal record.

4. Related Offenses

There are several offenses that are closely related to possession of drug paraphernalia under HS 11364. Some of the most common include:

• Health and Safety Code 11350 HS – simple possession of a controlled substance,
• Health and Safety Code 11351 HS – possession of a controlled substance for sale,
• Health and Safety Code 11352 HS – sale or transportation of a controlled substance,
• Health and Safety Code 11377 HS – possession of methamphetamine,
• Health and Safety Code 11378 HS – possession of methamphetamine for sale, and
• Health and Safety Code 11379.6 HS – manufacturing methamphetamine.

If you are charged with any of these offenses, you should speak to an experienced California criminal defense attorney immediately.

Call us for help…

If you or loved one is charged with possession of drug paraphernalia and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada’s drug paraphernalia laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas. ⁶

Legal References:

1. California Health and Safety Code 11364 HS – Possession of drug paraphernalia.
2. California Health and Safety Code 11364 HS – Possession of drug paraphernalia.
3. California Health and Safety Code 11364 HS – Possession of drug paraphernalia.
4. California Health and Safety Code 11364 HS – Possession of drug paraphernalia.
5. California Health and Safety Code 11364 HS – Possession of drug paraphernalia.
6. Nevada drug paraphernalia laws .

 

California Health and Safety Code § 11364(a) HS makes it illegal to possess drug paraphernalia . This means any device or instrument used to illegally inject, smoke, or consume a controlled substance .

Common examples of drug paraphernalia include:

• needles,
• spoons of cocaine ,
• razor blades,
• methamphetamine pipes , and
• foil.

To convict you of illegal possession of drug paraphernalia, the prosecutor must prove the following three facts (also known as “elements” of the crime):

1. You exercised control over (or had constructive possession of) drug paraphernalia;
2. You knew about the presence of the paraphernalia; and
3. You knew it was drug paraphernalia. ³

Let’s take a closer look at some of these terms to better understand the legal definition of possession of drug paraphernalia under Health and Safety Code 11364 HS.

Control

Under Health and Safety Code 11364 HS, ” control ” can be actual or constructive .

You actively control something when you physically carry it with you. For example, you actively control a crack pipe when you carry it in your pocket.

You constructively control something when it is either

1. You exercise control over that object (for example, you constructively possess the pipe that is yours and that you left on your dresser), or
2. You have the right to exercise control over that object either individually or with another person (for example, you constructively own the pipe you share with your wife that is at home in the bathroom). ⁴

Example : When Tina’s boyfriend moves in with her, he brings with him several crack pipes which she also uses regularly.

If the police search the apartment when Tina is not home and find the crack pipes, she could be charged with possession of drug paraphernalia under HS 11364. This is because she had constructive joint control of the pipes.

Paraphernalia

The term ” paraphernalia ” in California’s drug paraphernalia possession law refers to a variety of objects that are used to illegally consume

• inject,
• smoking, or
• otherwise consume controlled substances or narcotics. ⁵

Under this section, examples of drug paraphernalia include (but are not limited to) miniature cocaine pipes and ^spoons.6

Excluded from this list, at least until 2026, are hypodermic needles and syringes where both of the following conditions are met:

1. They are for your personal use only, and
2. You got them from a doctor, pharmacist, needle or syringe exchange program, or any other source authorized by law to provide sterile needles or syringes without a prescription. ⁷

Similarly, items most often associated with drug manufacturing and sales are not covered by HS 11364. This includes things like

• 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,

This is because possession of objects associated with the manufacture or sale of drugs is generally punishable under

•  Health and Safety Code 11351 HS – California “possession of drugs for sale” law , or
•  Health and Safety Code 11352 HS – California’s “transporting or selling a controlled substance” law

instead under HS 11364 , California’s drug paraphernalia possession law.

Controlled substances and narcotics

According to Health and Safety Code 11364 HS, ” controlled substances ” or “narcotics” are simply terms that describe a class of drugs and specific drug-like substances. Generally, these include:

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

Some of the most commonly used controlled substances and narcotics within these categories include:

• methamphetamine,
• heroin,
• cocaine, and
• PCP. ⁹

Marijuana is specifically excluded from California’s drug paraphernalia possession law . Drug offenses involving marijuana paraphernalia are regulated separately under California’s marijuana laws .

Under Proposition 64, California’s marijuana legalization law , most personal use of recreational marijuana is no longer illegal. ¹¹

Persons exempt from persecution

Certain people are exempt from prosecution under HS 11364, California’s paraphernalia possession law. These include:

• police officers or anyone working under their immediate direction or supervision, and
• Pharmacists, physicians, dentists, podiatrists, veterinarians, as well as manufacturers, wholesalers and retailers, who are licensed by the California State Board of Pharmacy and who prescribe, sell or transfer hypodermic syringes, needles or other objects intended for use in injecting drugs into the body. ¹²

2. How can I fight a 11364 HS charge?

The good news is that there are a variety of legal defenses to Section 11364 HS drug paraphernalia possession charges that a qualified California criminal defense attorney can file on your behalf. Below are examples of some of the most common ones.

You had no control over the paraphernalia.

If you did not have control over the paraphernalia, then you should not be convicted of this drug offense.

Example : Police obtain a California search warrant to search Miguel’s apartment for evidence of his involvement in a recent robbery crime. Police find a “crack pipe” in Miguel’s kitchen that belongs to his roommate Charlie.

Although the pipe is in Miguel’s house, he does not actually own it. As a result, Miguel should be acquitted of a charge of possession of paraphernalia.

The object was not paraphernalia.

Just because the object looks like something that can be used to inject or consume illegal drugs doesn’t necessarily mean that it actually is.

Maybe it’s a tool you use to administer prescription medications to your sick or injured animal. Maybe it’s a pipe you use to smoke tobacco.

In order for you to be guilty of possession of drug paraphernalia under section 11364 HS, the prosecutor must prove that you possess drug paraphernalia . Other items do not meet this criteria.

You didn’t know the object was paraphernalia.

Even if the police find drug paraphernalia in your possession, if you did not know it was paraphernalia , you are not guilty of violating California’s drug paraphernalia possession law.

This defense to 11364 HS charges works best for those who do not have a criminal history , especially a drug criminal history.

As Oakland criminal defense attorney Neil ^Shouse13 explains ,

“To determine whether you know an item is “drug paraphernalia,” the court will consider any prior drug-related convictions, your statements about drug use, expert testimony about the use of the item, and how the item was displayed for sale.” ¹⁴

You were not aware of the presence of the paraphernalia

Again, let’s say the police find you in possession of paraphernalia . If you didn’t know you had it, you should be acquitted of the possession of paraphernalia charge under section 11364 HS.

There are an infinite number of cases where this defense against drug paraphernalia possession charges could be applicable:

• Someone lent you their jacket and left a pipe in the pocket.
• Someone left their cocaine spoon in your car under the passenger seat.
• Someone placed a jar in your bag to avoid getting caught themselves.

The paraphernalia was discovered during an illegal search and seizure.

Drug paraphernalia is often discovered during the course of an illegal search and seizure .

Example : Karina is pulled over by the police for speeding. Without any justifiable reason for doing so, they make her get out of the car so they can conduct a search and find a cocaine pipe under her seat.

Because the paraphernalia was discovered during an illegal search, Karina’s California criminal defense attorney should prevail on a Penal Code Section 1538.5 motion to suppress evidence . This should lead to the dismissal of the charges.

3. What are the penalties if I am found guilty?

Possessing drug paraphernalia is a misdemeanor . Possible penalties include:

• up to six (6) months in county jail, and
• a maximum fine of $1,000. ¹⁵

Additionally, a conviction under section 11364 HS – or even an arrest under 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 immediate leave of absence until the charges are resolved.

The LA County District Attorney’s Office generally does not prosecute HS 11364 cases. ¹⁶

3.1. Am I eligible for drug diversion?

Some people convicted of California’s drug paraphernalia possession law will be eligible for an alternative sentencing option, known as a drug diversion program.

Drug rehabilitation is offered instead of jail to those who have committed non-violent drug possession and drug use offenses, such as HS 11364.

This type of alternative sentencing is available under

• California Proposition 36 and
• California Penal Code 1000, the drug diversion program or “deferred entry of judgment . ” ¹⁷

When you engage in drug diversion , you make a

• plea of guilty or
• declaration of no contest (more commonly known as “no contest”)

on charges of possession of drug paraphernalia.

The judge orders him to complete drug rehabilitation as a condition of his probation. He will likely also be subject to drug testing as a condition of his probation .

If you successfully complete your probation and drug treatment , the judge dismisses your ^charge for possession of drug paraphernalia. If you do not, the judge has the discretion to order you to serve a jail sentence.

HOWEVER, if at the same time you are convicted of California Health and Safety Code 11364 HS  and

1. a separate misdemeanor that does not involve simple possession or use of drugs (which includes driving under the influence of drugs) , ¹⁹  or
2. a serious crime,

will be disqualified from participating in drug diversion. ²⁰

4. Related crimes

California Health and Safety Code 11364 HS, the ” possession of drug paraphernalia ” law, is closely related to other California drug crimes.

Health and Safety Code 11364.5 HS

Health and Safety Code 11364.5 HS prohibits operating a business where legal substances are stored, displayed, or sold for use, except when maintained in a room inaccessible to minors (i.e., persons under the age of 18) who are not accompanied by a parent.

If convicted of this offense, the owner faces no criminal penalties , but may lose his or her California business license or permit. Additionally, any drug paraphernalia will be

• seized and
• confiscated by

the state. ²²

Health and Safety Code 11364.7 HS

Another California drug paraphernalia law, similar to HS 11364, is Health and Safety Code 11364.7 HS. This law prohibits persons from

• possess,
• supply,
• transport or
• manufacture

drug paraphernalia when they know or reasonably should know that the paraphernalia will be used in connection with the illegal use or sale of drugs . ²³

This section also punishes adults who

1. supply paraphernalia to minors, or
2. possess hypodermic needles on school grounds with the intent (or knowledge) that a minor will use them to inject illegal drugs. ²⁴

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

• a misdemeanor (subject to up to one year in a county jail and a maximum fine of $1,000), or
• a  felony ( ^punishable  by 16 months, or two or three years in California state prison and a maximum fine of $10,000).

Health and Safety Code 11365 HS

Health and Safety Code 11365 HS makes it a crime to :

• being present while someone else uses controlled substances and
• assist and encourage their use of controlled substances. ²⁶

This misdemeanor carries a possible jail sentence of up to six (6) months. ²⁷

You may be charged under Health and Safety Code 11364 HS 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.

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Legal references: