HEALTH AND SAFETY CODE 11364 HS – POSSESSION OF DRUG PARAPHERNALIA

California Health And Safety Code § 11364 (a) makes it unlawful to have possession of drug paraphernalia, referring to any device or instrument used for unlawfully injecting, smoking, or otherwise consuming a controlled substance in any form. Common examples of drug paraphernalia include needles, cocaine spoons, razor blades, methamphetamine pipes, and tinfoil.

One notable exception to California’s law on drug paraphernalia possession is that it is legal to possess hypodermic needles or syringes until 2026 under specific conditions. These conditions include using them solely for personal use and obtaining them from authorized sources such as physicians, pharmacists, needle or syringe exchange programs, or other legally permitted providers of sterile needles without a prescription. This exception serves as a public initiative aimed at preventing the spread of HIV and other bloodborne diseases among individuals who engage in the injection of drugs like heroin.

Please note; generally, the Los Angeles County District Attorney’s office does not prosecute cases involving Health & Safety Code Section 11364 (drug paraphernalia possession).

11364 HS: (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.

Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC&sectionNum=11364.

Overview of Controlled Substances And Narcotic Drugs

Under California Health and Safety Code 11364 HS, certain drugs and drug-like substances are classified as “controlled substances” or “narcotic drugs.” These substances can be further categorized into stimulants, depressants, hallucinogens, and opiates. Here are some examples of commonly used controlled substances and narcotics within these categories:

• Stimulants: Methamphetamine, Cocaine, Amphetamines
• Depressants: Heroin, Opioids (such as oxycodone, hydrocodone), Benzodiazepines (such as Xanax, Valium)
• Hallucinogen: LSD (Lysergic Acid Diethylamide), Psilocybin (found in “magic mushrooms”), MDMA (Ecstasy, Molly), Phencyclidine (PCP)
• Opiates: Morphine, Codeine, Fentanyl

According to California law, possession of drug paraphernalia does not apply to marijuana. In California, drug offenses involving marijuana paraphernalia are regulated separately under the state’s marijuana laws. Proposition 64, which legalized recreational marijuana use in California, decriminalized most personal use of marijuana. Therefore, possessing paraphernalia specifically related to marijuana is not considered a drug offense under California’s drug paraphernalia law.

Elements

In order to secure a conviction for the illegal possession of drug paraphernalia, the prosecutor must establish three essential elements, or facts:

• You had control or constructive possession of the drug paraphernalia.
• You were aware of the presence of the paraphernalia.
• You were aware that the items in question were considered drug paraphernalia.

Under certain circumstances, the possession of needles or syringes may be permissible for a defendant. The following conditions must be met:

• The defendant possessed the needles or syringes for personal use.
• The defendant obtained them from an authorized source.
• The defendant possessed no more than 10 needles or syringes.

The possession of a device used for smoking marijuana, without any additional illegal substances or criminal intent, is not considered a crime.

Example

Jennifer is driving home late at night when she is pulled over by the police for a broken taillight. The officer suspects that Jennifer might be driving under the influence and proceeds to conduct a sobriety test. During the search incident to arrest, the officer finds a small glass pipe commonly used for smoking methamphetamine in Jennifer’s purse. Since the pipe is specifically designed and used for methamphetamine, Jennifer could be charged with possession of drug paraphernalia under California Health & Safety Code Section 11364 HSC.

The specifics of each case can vary, and the outcomes may depend on the exact circumstances, applicable laws, and the interpretation of the courts.

Here is another example; John is stopped by a police officer during a routine search. During the search, an officer discovers multiple hypodermic needles in the man’s jacket pocket. It turns out that the man has diabetes and has been authorized to possess these needles. If he has fewer than ten needles on him, he would not face criminal charges for possession of drug paraphernalia.

Penalties

11364 HS is a Felony or Misdemeanor? According to California Health & Safety Code Section 11364, possessing drug paraphernalia is considered a misdemeanor offense. Those found guilty of violating California’s drug paraphernalia possession law could face a sentence of up to six months in jail, as well as a maximum fine of $1,000.

It is also possible that those convicted may face additional consequences, particularly if they hold professional licenses such as lawyers, teachers, contractors, or real estate agents. Therefore, Penal Code 11364 HS is a misdemeanor offense in California. Individuals in certain professions who are convicted of drug paraphernalia possession may face additional repercussions, such as the suspension of their professional license.

Furthermore, if any measurable quantity of narcotics is found within the paraphernalia, the defendant may face charges for felony possession of a controlled substance. Such charges would be in violation of California Health & Safety Code Section 11350 HSC.

Please note; HS 11364 does not cover items commonly linked to the production and distribution of drugs. These include scales and balances for measuring and weighing drugs, mixing devices such as blenders, bowls, and spoons, and containers like capsules, balloons, and other items used for concealing or packaging drugs.

Possession of such items is typically punished under other California laws such as Health and Safety Code 11351, which pertains to drug possession with the intent to sell, or HS 11352, which addresses the transportation or sale of controlled substances. As a result, California’s “possession of drug paraphernalia” law, HS 11364, does not apply to these items.

Eligibility for Drug Diversion in California

To determine if you are eligible for drug diversion in California, there are specific criteria that must be met. Drug diversion programs provide an alternative to jail time for individuals convicted of nonviolent drug possession and drug use offenses, such as HS 11364.

The two main programs that offer drug diversion in California are California Proposition 36 and Penal Code 1000 PC, also known as California’s “deferred entry of judgment” program1. Here are the key points to consider:

• The drug diversion programs typically apply to offenses related to drug possession and drug use, including possession of drug paraphernalia. One common example is violation of California Health and Safety Code 11364 HS1.
• You must have committed a non-violent drug possession or drug use offense to be eligible for drug diversion.
• To participate in a drug diversion program, you will need to enter either a guilty or nolo contendere plea (often referred to as “no contest”) for the drug paraphernalia possession charges. This plea indicates your acceptance of responsibility for the offense.
• As part of the drug diversion program, you will be required to complete a drug rehabilitation program and comply with probation conditions, which may include drug testing.
• If you successfully complete the drug rehabilitation program and probation, the judge will dismiss your drug paraphernalia possession charge. However, failure to complete the program may result in a jail sentence.

If you are simultaneously convicted of California Health and Safety Code 11364 HS and a separate misdemeanor offense that doesn’t involve simple possession or drug use (e.g., driving under the influence of drugs) or a felony crime, you may be disqualified from participating in drug diversion.

It is recommended to consult with a qualified attorney who can provide personalized advice based on your specific situation and the current laws and regulations regarding drug diversion in California.

Defenses

Under California Health & Safety Code 11364 law, there are several potential defenses that can be raised in cases involving possession of drug paraphernalia 1. Here are some common defenses:

• The item wasn’t drug paraphernalia: One potential defense is to argue that the item in question does not meet the legal definition of drug paraphernalia. California Health & Safety Code Section 11364 defines drug paraphernalia as equipment, products, or materials used for unlawfully injecting, consuming, or preparing controlled substances. If it can be shown that the item in question was not primarily intended for these purposes, it may not be considered drug paraphernalia and the charges could be dismissed.
• Lack of ownership: Another defense is to claim that the paraphernalia does not belong to the accused individual. It may be necessary to provide evidence that the item belonged to someone else and that the accused person had no knowledge or control over its presence.
• Lack of knowledge: It is also a defense to argue that the accused person did not know that the item was drug paraphernalia. If the individual can demonstrate that they were unaware of the nature of the object or its intended use, this defense may be successful.
• Illegal search or seizure: If the paraphernalia was discovered as a result of an illegal search or seizure by law enforcement, it may be possible to challenge the admissibility of the evidence. This defense asserts that the Fourth Amendment rights protecting against unreasonable searches and seizures were violated.

It is important to remember that the effectiveness of these defenses will depend on the specific circumstances of each case.

Consulting with an experienced drug crime defense attorney is highly recommended to determine the best defense strategy.

Immigration Consequences:

According to the Immigration Legal Resource Center (ILRC), a conviction under California Health and Safety Code Section 11364 for possession of drug paraphernalia can have immigration consequences for non-U.S. citizens. For immigrants, a conviction under H&S Section 11364 may be treated similarly to a possession offense. It is recommended for immigrants facing such charges to consult with an immigration attorney to understand the potential consequences and explore available defenses. If you do not have or know of an immigration lawyer, the Tabibnia Law Firm can refer you to one.

Sources:

• ILRC – Practice Advisory: Immigrant Defendants with a First Minor Drug Offense
• ILRC – Quick Reference Chart for Determining Immigration Consequences of Selected California Offenses

Related Crimes

Health and Safety Code Section 11364 HS in California, which pertains to the possession of drug paraphernalia, is closely linked to other drug offenses in the state of California. Here are some related drug offenses along with their corresponding penal codes:

• Possession of a Controlled Substance – California Health and Safety Code Section 11350 HS
• Possession for Sale of a Controlled Substance – California Health and Safety Code Section 11351 HS
• Transportation of a Controlled Substance – California Health and Safety Code Section 11352 HS
• Possession of Methamphetamine – California Health and Safety Code Section 11377 HS
• Cultivation of Marijuana – California Health and Safety Code Section 11358 HS
• Sale or Transport of Drug Paraphernalia – California Health and Safety Code Section 11364.5 HS
• Possession of Drug Paraphernalia by an Authorized Hypodermic Needle or Syringe Program – California Health and Safety Code Section 11364.7 HS
• Unauthorized Entry into a Place Where Drugs are Sold or Used – California Health and Safety Code Section 11365 HS
• Under the Influence of Drugs – California Health & Safety Code Section 11550 HS

Please note that this is not an exhaustive list of all related offenses, but it provides some examples of other drug-related crimes in California.

Speak With Criminal Defense Lawyer From Tabibnia Law Firm

If you are facing charges related to possession of drug paraphernalia, it is crucial to seek immediate legal assistance from a reputable Los Angeles Criminal Defense Lawyer. Cyrus Tabibnia, a highly experienced lawyer with over 18 years of practice, is well-regarded within the court system for his staunch advocacy on behalf of his clients. With his expertise in drug cases, Attorney Tabibnia can effectively fight charges and develop a strong defense strategy.

To learn more about the legal aspects surrounding possession of drug paraphernalia and to schedule a free consultation, reach out to Los Angeles Drug Crime Defense Attorney Cyrus Tabibnia at the Tabibnia Law Firm by calling 866-713-2159.

Please note that the information provided is based on the sources referenced below and should not be considered legal or medical advice. Laws and eligibility requirements may vary, so it’s crucial to consult with legal professionals or references for accurate and up-to-date information.

Legal References:

California Legislative Information | California Public Law