Many people in California assume that drug crimes only involve using, possessing, and selling controlled substances. However, other drug crimes are greatly overlooked. One of these crimes includes possessing any item or equipment that aids in the ingestion or smoking illicit substances. Possessing drug paraphernalia attracts stiffer penalties more than you could imagine.

You should seek professional legal help if arrested and charged with possessing drug paraphernalia in California. A lawyer will help you make an informed decision on how to handle your charges. Please schedule an appointment with the Riverside Criminal Defense Attorney Law Firm for an in-depth evaluation of your charges and learn how we can help you.

Definition of Possession of Drug Paraphernalia in California

Possession of drug paraphernalia is prohibited under California Health and Safety Code 11364. This statute prohibits the possession of any device, instrument, or paraphernalia used in the unlawful use of a controlled substance.

However, as of January 2021, it’s legal to possess syringes IF or hypodermic needles if they are for your personal use and acquired from a pharmacist, physician, or any source authorized to provide needles and sterile syringes without prescriptions.

The exception details are meant to curb the transmission of blood-borne diseases like HIV among heroin and other injectable drug addicts.

Here is an example that explains this situation:

Andrew, a heroin addict, is concerned about the possibility of acquiring HIV from sharing needles with other drug users. Therefore, he regularly visits an authorized needle exchange for new needles.

If Andrew is arrested for possessing heroin along with the needles, he can face a simple possession of controlled substance charge. However, he will not be charged with possession of drug paraphernalia if he’s arrested with the newly exchanged needles.

A prosecution under Health and Safety Code 11364 requires the prosecutors to prove the following three facts:

  • You had control over the drug paraphernalia.
  • You knew about the presence of the paraphernalia.
  • You knew that they were drug paraphernalia.

Here is a closer look at the definition of these terms to better understand the definition of this crime.


You might have actual or control of the drug paraphernalia. Active or actual control means that you have the device on your person. For instance, carrying a crack cocaine pipe in your pocket suffices as an active control.

On the other hand, constructive control refers to either:

  • Exercising control of an item like possessing a pipe that’s found in your bedroom dresser.
  • You have the right to control the device directly or through another person. For instance, you have constructive control of a particular item if you and your wife use it and it’s hidden in your bathroom, where you can both access it.

Here is an example that will help you understand this situation better:

Joseph and his girlfriend both smoke crack cocaine. Joseph brings several crack pipes when moving in with his girlfriend, who regularly uses them.

When the police search the apartment when his girlfriend is not around, they find several crack pipes. Joseph’s girlfriend can be charged under Health and Safety Code 11364 since she has constructive control over the crack pipes.


Paraphernalia refers to various items used in illegally smoking, injecting or the consumption of narcotic drugs.

Examples of drug paraphernalia may include the following:

  • Spoons
  • Roach clips
  • Hypodermic needles
  • Syringes
  • Tourniquets

Items used in the manufacture or sale of drugs are also drug paraphernalia. These items include:

  • Scales and balances are used to weigh and balance drugs.
  • Bowls, blenders, spoons, and other devices used in the compounding drugs.
  • Containers, capsules, or balloons are used in packaging or concealing drugs.

These items are drug paraphernalia since their possession is associated with drug crimes like drug possession for sale and transportation or sale of controlled substances. 

Narcotic Drugs and Controlled Substances

Health and Safety Code 11364 defines “narcotic drugs” or “controlled substances” as specific drugs or drug-like substances prohibited in California. It includes general classifications like:

  • Opiates
  • Depressants
  • Hallucinogens
  • Stimulants

Some of the specific narcotics or controlled substances that fall under these general classifications include:

  • Cocaine
  • Methamphetamines
  • PCP
  • Heroin

Please note, Marijuana is exempted under H&S 11364. Drug crimes related to marijuana paraphernalia fall under Proposition 64 and California Marijuana laws.

Exemption from Prosecution Under H&S 11364

Certain people are exempted from prosecution under H&S 11364. These people include:

  • Police officers or anyone working under their direct supervision or direction.
  • Licensed pharmacists, podiatrists, dentists, veterinarians, retailers, and wholesalers.

Penalties for Possessing Drug Paraphernalia in California

Possession of drug paraphernalia in California is a misdemeanor punishable by:

  • A maximum of six months of custody in county jail.
  • A fine of up to $1,000.

Apart from the above penalties, a conviction can lead to professional repercussions for professional license holders. For instance, a teacher arrested for this crime might be forced to leave an immediate absence until the charges are resolved.

Additionally, a conviction under H&S 11364 can lead to a permanent criminal record. The permanent conviction record can affect you in the following ways:

  • When seeking a job.
  • Renting an apartment.
  • Holding a professional license, especially in healthcare, teaching, or pharmacy.
  • Approval for a green card, immigration, or Visa if you’re not a US citizen.

Drug Diversion in Possession of Drug Paraphernalia Convictions in California

Certain people convicted under H&S 11364 are eligible for alternative sentencing known as a drug diversion program. Under this program, you’re offered drug rehabilitation in place of serving time in jail only If you’ve committed a non-violent crime along with possessing drug paraphernalia. This type of diversion falls under California Penal Code 1000: California deferred entry of judgment or drug diversion program.

To participate in this drug diversion program, you must enter into a nolo contendere plea, no contest, or a guilty plea to the charges. You must also meet the following requirements:

  • You have no prior drug convictions.
  • Your case doesn’t involve any evidence of another drug crime that’s not eligible for diversion.
  • You haven’t had your parole or probation revoked.
  • You haven’t been in a diversion program for the last five years.
  • You have been convicted of any felony within five years.

The judge will then order you to complete a drug rehabilitation program and require you to submit to random drug testing as a condition of your release.

The judge will then dismiss your charges upon completion of your drug treatment. However, if you fail to complete rehabilitation, the judge can order you to serve your jail sentence.

Please note, anyone convicted of possessing drug paraphernalia and a separate misdemeanor involving possession of drugs or driving under the influence of drugs cannot participate in the diversion program.

Legal Defense Strategies for Possessing Drug Paraphernalia in California

You and your attorney should adopt effective legal defense strategies to negotiate a reduction or dismissal of your charges. You must evaluate your case to come up with the best strategies. Below are possible legal defenses that you can rely on:

The Drug Paraphernalia Were Authorized for Personal Use

If you’re found to possess drug paraphernalia but are authorized for personal use, your attorney can argue that the possession was not illegal. Recall the example of Andrew, who seeks new needles due to his fear of contracting HIV; he cannot be convicted for possessing drug paraphernalia since he acquired the needles legally.

Apart from that, if you’re authorized personnel involved in the manufacture, sale, or provision of drug paraphernalia, you cannot be convicted of this crime if found with the apparatus.

You Didn’t Possess the Drug Paraphernalia

As stated above, you can only be accused of possessing drug paraphernalia if you have actual or constructive control over them. Therefore, if you can prove to the court that you don’t possess the paraphernalia, then you’re not guilty of a violation under H&S 11364. Here’s an example that explains this scenario much better:

The police obtain a search warrant on Charlie’s apartment following evidence suggesting that he's hiding stolen goods. The police find a crack pipe during the search. However, the pipe belongs to his roommate Miguel. Even though the pipe isn’t Charlie’s, he’s not in actual possession of the pipes and doesn’t have the right to control them.

Therefore, Charlie should be acquitted of the drug paraphernalia possession charges. 

The Object in Possession Wasn’t a Drug Paraphernalia

An object that looks like something used to consume or inject illegal drugs doesn’t necessarily mean that it’s used for this purpose. Probably, the object is used to administer prescription drugs to an injured animal. If your charges are based on a pipe, maybe it’s used to smoke tobacco.

Regardless of the object that you possess, the prosecutor should prove that it’s drug paraphernalia. Most probably, the presence of packets of unused narcotics or crumbles of the prohibited drugs would satisfy the assumption that the object is drug paraphernalia.

You Had No Knowledge that the Object was a Paraphernalia

When the police find drug paraphernalia under your possession, but you didn’t know about its nature, you’re not guilty of violating H&S 11364. This legal defense is suitable for someone without prior criminal drug charges.

For the court to determine whether you knew that a particular object is drug paraphernalia, it must take note of your statements concerning its use, expert testimonies, and prior drug-related conviction to satisfy the requirements of an accusation.

You Had No Knowledge of the Presence of the Paraphernalia

When the police find out that you owned paraphernalia and didn’t know that you possessed it, you’re innocent of possession of drug paraphernalia. There are several instances where you can possess drug paraphernalia without your knowledge. For instance, if someone borrows your jacket and leaves a cocaine crack pipe in its pocket, this does not mean that you were knowingly possessing the paraphernalia when apprehended by the police. The same applies when someone places a vial in your purse or leaves a cocaine spoon in your passenger’s car seat.

The Police Discovered the Paraphernalia During an Illegal Search and Seizure

In most cases, the police discover drug paraphernalia while conducting a search and seizure. However, if the search was illegal, your attorney can file a motion to suppress evidence to dismiss the charges. Below is an example that explains this scenario:

The police pull over Catherine for speeding. They instruct her to exit her car and start searching her vehicle. They find a crack cocaine pipe under her seat and charge her with possession of drug paraphernalia.

In this situation, Catherine’s attorney can file a motion to suppress the evidence since the police illegally found the pipe through an illegal search and seizure.


In some cases, law enforcement officers encourage people to commit a potential crime while dealing with a larger criminal enterprise. However, if you end up being arrested by other police with drug paraphernalia, you can use entrapment as your legal defense strategy.

Insufficient Evidence

If you and your attorney believe that the prosecutor doesn’t have enough evidence to prosecute you, you can use this as a legal defense to your charges. You can achieve this if the evidence presented by the prosecution isn’t enough to prove all the elements of the crime beyond a reasonable doubt.

Crimes Related to Possession of Drug Paraphernalia in California

Possession of drug paraphernalia is closely related to a few other California drug offenses. Prosecutors can either prosecute you with these crimes in place of H&S 11364 or along with the drug paraphernalia possession charges. Here is a closer look at these crimes.

Health and Safety Code 11364.5

Under the Health and Safety Code 11364.5, it’s illegal to operate a business where drug paraphernalia is displayed, stored, or sold for use with a legal substance except when it’s in an inaccessible room.

A guilty conviction for this offense doesn’t attract fines or jail time, but business owners stand to lose their business permit or license. The state also seizes the drug paraphernalia.

Health and Safety Code 11364.7

The definition of Health and Safety Code 11364.7 is close to Health and Safety Code 11364. The only difference is that it prohibits people from transporting, furnishing, or manufacturing drug paraphernalia, knowing that you will use it in an illegal drug sale or use.

This statute punishes people who:

  • Furnish minors with paraphernalia.
  • Possess hypodermic needles on school grounds knowing that minors would use them the inject illegal drugs.

A violation of this statute can be charged as a misdemeanor or a felony, depending on the facts of the case. A misdemeanor carries a maximum of one year in county jail and a fine of up to $1,000. A felony carries 16 months, two years, or three years of imprisonment and a fine of up to $10,000. 

Health and Safety Code 11365

Under Health and Safety Code 11365, it’s illegal to be present when another person uses a controlled substance to abet or aid that person to use the illegal drug.

This is a misdemeanor with a maximum of six months in jail. You can be charged under this statute if you’re found to be possessing drug paraphernalia that another person uses.

Pretrial Motions in Your Possession of Drug Paraphernalia Charges

Pretrial motions are critical in the dismissal or reduction of your criminal charges. After a preliminary hearing, the prosecutor and your defense attorney will appear before the judge and make pretrial motions. These are arguments that the prosecutor should keep certain evidence out of trial and certain people shouldn’t testify. Your attorney can also argue that the entire case is to be dismissed.

For instance, if the court denies you the opportunity for a speedy trial, your attorney can file a motion asking the court to dismiss the charges. This is referred to as a Serna motion.

Pretrial motions are used by a defendant’s defense or the government to set boundaries for trials. They set to agree on what law enforcement will use physical evidence or testimony, the legal arguments that should or should not be used, and whether there’s a reason why a defendant should not stand on trial.

For instance, if you’re charged with possession of drug paraphernalia along with drug possession charges, you can request a pretrial motion to exclude your drug paraphernalia possession charges if the police obtained them through an illegal search and seizure.

Here is a detailed view of the types of pretrial motions that you can rely on.

Motion to Suppress

Motion to suppress is the most common pretrial motion. It aims at suppressing certain evidence that is collected contrary to the rule of law. Many of the standard rules of law include the “Miranda” warnings – the right to an attorney and the right to be provided with an attorney when you cannot afford one. These warnings also include the right to remain silent and have your attorney present during police questioning.

The rule of law also applies to the search and seizure of people’s property, vehicle, place of employment, or any other place where you expect reasonable privacy. If the police break the law during an investigation, it’s possible to keep the evidence collected from being used in your prosecution by filing a motion to suppress evidence.

Any other violation of your constitutional rights also works as an appropriate remedy for excluding evidence gathered in violation of your rights. This doctrine is referred to as the “fruit of poisonous tree.” Violation of more than one constitutional right can be suitable in filing a motion to suppress.

For instance, the United States Fourth Amendment guarantees freedom from unreasonable searches and seizures. The context of a reasonable search and seizure is complex. Therefore, you can easily raise doubt on evidence collected through a search and seizure as long as you can establish facts proving that law enforcement illegally did it.

Motion to Compel Discovery

Another type of motion that you can file is the motion to compel discovery. In a criminal case, prosecutors should turn certain pieces of information to a criminal defendant. However, there are cases where the prosecution fails to submit certain information that they should turn over.

Prosecutors don’t do this necessarily in bad faith since they fail to submit information when they truly believe they aren’t supposed to do so. Your defense can disagree with this and file a motion to compel evidence and have the court order the prosecution to disclose this information.

Pitchess Motion

A pitchess motion is also another common motion that defendants can present in court. A pitchess motion is aimed to request confidential law enforcement personal records, despite the presumption that all information contained in these files should remain confidential.

However, some cases might involve allegations for excessive use of force, racial bias, or fabrication of the report. Law enforcement might wrongly include certain information related to past disciplinary incidences in these reports.

The best way that the court strikes a balance between the defendant’s right to reveal these pieces of information and maintain the confidentiality of police reports is through a pitchess motion.

If you meet this requirement, the court will review the police records in private to determine whether they’re relevant for your case. If the records are found relevant for your scrutiny, they will disclose them to you. You’ll have to bring a motion to the court explaining why you want to disclose these records.

It’s crucial to let your attorney decide on which motion to use. You might probably think that a particular motion is good enough for your case, only to find out that it can’t work.

Of course, you can ask questions and make suggestions when needed, but it’s upon your attorney to evaluate your options and choose the best one.

Find the Experienced Riverside Drug Attorney Near Me

A conviction for possession of drug paraphernalia carries severe life implications. That’s why you should retain a professional drug crimes attorney to protect your legal rights and reduce the possibility of a conviction. At the Riverside Criminal Defense Attorney Law Firm, we are committed to providing the best legal services to clients facing drug paraphernalia possession charges and any other drug crime. If you’re interested in learning more about our services, please call us at 951-946-6366 and schedule an appointment.