Under California Health and Safety Code 11364, drug paraphernalia is any instrument or tool used to consume a controlled substance. The rise in drug crimes has forced the California legislature to enact harsh laws and impose strict penalties for individuals facing charges for drug-related offenses. Some items treated as paraphernalia under this statute include methamphetamine pipes, lighters, opium pipes, cocaine spoons, and syringes. 

Facing charges for drug paraphernalia possession may be considered a lesser offense. However, prosecutors are aggressive in prosecuting this crime, and a conviction could attract severe legal consequences. If you are battling charges for possession of drug paraphernalia, seeking legal guidance is one of the wisest decisions you can make for your case.

At Chula Vista Criminal Attorney, we understand that your future is at stake when you face charges and a conviction for this offense. We will help you understand your charges, protect your rights and help you build a strong defense against the charges to avoid a conviction.

Overview of California HSC 11364

Possession of drug paraphernalia is a drug crime charged under Health and Safety Code 11364. Before you face a conviction for violating this statute, the prosecution must prove these elements beyond a reasonable doubt:

1)  You Possessed Paraphernalia

The issue of possession of drug paraphernalia charges is not always straightforward. There are three main forms of possession, including:

  • Actual Possession. This is the form of possession commonly known to people and involves having the objects within your grasp.
  • Constructive possession. Being in constructive possession of drug paraphernalia means that you have control over the item even when it is not in your physical possession. You could face charges for constructive paraphernalia possession even when it is in another person's possession. However, the prosecution must prove that it was in your control and you had the authority to take physical possession.
  • Joint possession. Prosecutors can bring charges for possession of paraphernalia on multiple defendants. Proving joint possession of the objects relies on the prosecutor's ability to connect you to paraphernalia even when it is found in a common space.

As defined under HSC 11364, paraphernalia is any unlawful item used to inject, smoke, or consume a restricted substance. There is a wide range of objects that could suffice as drug paraphernalia in California, including:

  • Roach clips
  • Rolling papers
  • Cocaine spoon
  • Hypodermic needles
  • Syringes
  • Tourniquets

It is important to understand that any item linked to the sale of the drugs other than use is not part of drug paraphernalia in this case.

2)  Knowledge of Paraphernalia Possession

Another element that must be clear before the judge finds you guilty of possessing drug paraphernalia is that you knew of the presence of paraphernalia. It is not uncommon to have an illegal item on you but not know about. Therefore, you cannot be convicted unless the prosecutor proves your knowledge of this fact.

3)  The knowledge that the Item is Paraphernalia

In addition to knowing that you have the alleged object, you must have known that the item was a toll for consumption or regulated substances. Drug paraphernalia may be simple household items like an impact mirror or a razor blade. Unless you are linked to actual drugs, it is challenging for the prosecution to prove your knowledge that the item you possessed is paraphernalia.

In California, the following group of individuals is not criminally liable under HSV 11364:

  • Dentists, doctors, pharmacists, or veterinarians
  • Manufacturers, wholesalers, and retailers who are licensed by the pharmacy board to prescribe or sell syringes and needles 
  • A law enforcement officer 

Sentencing and Punishment for Possession of Drug Paraphernalia

Drug paraphernalia possession is a misdemeanor. The penalties you face after a conviction under this statute include:

  • A jail sentence of up to six months
  • A fine not exceeding $1,000

A conviction for violating HSC 11364 leaves a permanent criminal record. Therefore, after you have served your sentence and paid your fines, the conviction could affect different aspects of your life, including:

  • Loss of a professional license. Pending a resolution of your charges, an arrest for drug paraphernalia could result in the suspension of your professional license. If you are found guilty and face a conviction for the offense, you could lose your license completely. Losing a professional license may mean the end of your career. Therefore, you must fight these charges aggressively.
  • Loss of a custody battle. All drug crimes will taint your reputation. If a family court judge discovers a conviction for drug paraphernalia in your record, they may favor your child's other parent in a custody battle. If you already have custody of the child, the other parent can seek a modification following the conviction.
  • Difficulty securing employment. A background check is a basic step in the recruitment process for many employers. Therefore, when a drug crime like possessing paraphernalia comes up in your background check, the employer can write you off for the job.

Drug Diversion After an HSC 11364 Conviction

Under California, PC 1000 is an alternative sentence allowing defendants facing low-level drug crimes like possessing paraphernalia to have their charges dismissed. However, before the dismissal, you must complete a diversion program. If you complete the drug rehabilitation program, the court allows you to plead not guilty to your charges. However, failing the program means you must undergo training and possibly face a conviction.

When you face charges for drug paraphernalia possession, you are eligible for the drug diversion if you meet the following criteria:

  • You are not a violent offender
  • You do not have a prior conviction for possession of a controlled substance within the last five years
  • You do not have a prior conviction for a felony in the last five years
  • There is no evidence to prove that you have been involved in the possession, sale, or use of dangerous drugs

A diversion program does not come automatically when you are charged with violating HSC 11364. The following procedure is followed before you end up on the diversion:

Notice from the Prosecutor

In the initial stages of your case, the prosecutor reviews your case to determine your eligibility for the program. Written notification on your eligibility from the prosecutor includes:

  • A description of pretrial diversion procedures
  • An explanation of the roles of the probation department and the court in the diversion process
  • Clear instructions of what you must do to receive the diversion
  • A statement of your rights and how the diversion will proceed

Probation Officer Investigation

The court holds a hearing where the judge determines whether they will consent or deny the pretrial diversion. Before the judge decides on your diversion, they may order a probation officer to investigate your case while considering the following factors:

  • Your age
  • Your education background
  • Employment records
  • Family and community ties
  • Treatment history and other mitigating factors

Determination of Eligibility

If the court orders an investigation by the probation department, the probation officer recommends programs they feel would benefit you, depending on the circumstances of your case. The judge then makes the final decision on either treatment, rehabilitation, or education. A drug diversion for drug paraphernalia possession lasts up to eighteen months.

Legal Defenses Against HSC 11364 Charges

Drug Paraphernalia possession is a severe crime. Fortunately, facing charges for the offense is not the end of the road for you. There is a possibility to beat the charges by exploring the following legal defenses for your case:

Lack of Knowledge of the Presence of Paraphernalia

One of the key elements of California HSC 11364 is your knowledge of the presence of paraphernalia. Therefore, even when police officers find you with the tools, and they cannot prove your knowledge of their presence, you cannot face a conviction. There are several explanations for having drug paraphernalia, including:

  • Someone dropped a cocaine spoon from their pocket to your vehicle
  • Someone transfers a syringe to your bag to avoid an arrest
  • A friend gives you a bag containing a pipe for you to hold for them

Lack of Possession

In your criminal case for paraphernalia possession, the prosecution has the burden to demonstrate and provide proof that you possessed the alleged items. Prosecutors can prove this in three ways:

  • Actual possession. The arresting officer found the tool on your person or in your vehicle
  • Constructive possession. You were in direct control of the objects
  • Joint possession. You and another person were in joint possession and control over the paraphernalia.

With the guidance of a skilled attorney, you can develop a defense against one of these theories.


You are only guilty of possessing paraphernalia if the alleged object is an instrument used to consume a restricted substance. You can argue that you intended to use the object they found for other purposes, such as administering a prescription for our pet.

Legal Authorization

Some objects that fall under the classification of drug paraphernalia are not illegal when you have a valid prescription. For example, the syringes and needles used to inject insulin for diabetic patients are also associated with cocaine use. You have the authority to possess hydraulic needles if:

  • You obtained them for personal use
  • You sourced them from an authorized person
  • You possessed less than ten needles

If you argue that you had legal authorization to possess the item, you cannot face a conviction under this statute. The prosecution concentrates on proving a lack of legal authorization. Therefore, a skilled attorney can argue that these syringes are a medical necessity, given your condition.

Marijuana Paraphernalia.

Consumption and possession of tobacco are legal in California. Therefore, you are not guilty under HSC 11364 if you are found in possession of an item used to inhale tobacco and not for marijuana. However, if chemical tests show marijuana residues in the object, you could face charges for marijuana possession under HSC 11357.

Illegal Search and Seizure

 Even when the police officers suspect you of committing a crime, they must have a valid search warrant to search your property. In most cases, drug paraphernalia is discovered during an illegal search. When the evidence collected from an illegal search and seizure is the basis of your case, your attorney can file a motion asking the court to dismiss this evidence. Without evidence of paraphernalia, the prosecution will not have a strong case against you and can dismiss your charges.

Lack of Knowledge that an Object was Paraphernalia

When proving your guilt for paraphernalia possession, the prosecution must establish your knowledge of the fact that the alleged item was meant for use in the consumption of an illegal substance. Often, the defense of lack of knowledge works best if you are a first-time offender or do not have a history of drug crime convictions. In this case, you can convince the court that you believed the item was something else.

The court establishes your lack of knowledge by checking your past violations and expert testimony on how the item was displayed. If the police recover drugs alongside the paraphernalia, it may be challenging to assert this defense.

Police Entrapment

A case of entrapment occurs when the law enforcement officers induce or encourage you to commit a crime when you clearly show no desire to engage in criminal activity. The entrapment defense would apply to your case if a government agent's idea of possessing drug paraphernalia originated.

Offenses Related to Drug Paraphernalia Possession

Several drug crimes are related to possession of paraphernalia. Since these offenses share some elements with HSC 11364, the prosecution can charge them alongside or instead of possession of drug paraphernalia, and they include:

1)  Possession of a Controlled Substance 

Under California HSC 11350(a), possessing a controlled substance without a prescription is a crime. For this statute, a controlled substance could be illegal narcotics like cocaine and heroin or legal prescription drugs. In the police search, uncovering paraphernalia with a significant amount of a controlled substance, you could face charges for possession of the substance and possession of paraphernalia.

A conviction for possession of a controlled substance is reached after the prosecution has proven the following elements of the crime:

  1. You possessed a restricted substance. A restricted substance is any chemical whose manufacture the government regulates possession and sale. Controlled substances are not restricted to illegal drugs. You can face an arrest for unlawful possession of prescription drugs.
  2. You did not have a prescription. Possession of prescription drugs is only illegal when you do not have a valid prescription from a doctor or physician.
  3. You knew of the substance's presence. You will face a conviction for possession of restricted substances if your knowledge of the presence of the substance is clear.
  4. You knew the nature of the substance. Knowing the presence of a controlled substance is not enough to secure a conviction under this statute. The prosecution must prove that you knew of the substance's nature as a restricted substance.
  5. The substance was in a usable amount. You only face a conviction for possessing a controlled substance if the amount is enough to affect your body functions.

Simple possession of a controlled substance is a misdemeanor, and a conviction is punishable by a year in county jail and a $1,000 fine. However, if you have a prior conviction for a serious felony or a sex offense, the prosecution could file felony charges. Felony possession of a controlled substance is punishable by a three-year jail sentence.

2)  Manufacturing and Transport of Drug Paraphernalia

Manufacturing or transporting any tool used to consume controlled substances will attract drug charges under California HSC 11364.7. This section of the law seeks to punish individuals transporting paraphernalia and adults providing these tools to minors. Manufacture and transport of paraphernalia is a wobbler. Depending on the exact item you manufactured for its intended use, the prosecution can charge you with a felony or a misdemeanor.

Felony transport and manufacture of drug paraphernalia are punishable by a two to three years prison sentence and up to $10,000 in fines. On the other hand, a misdemeanor conviction under this statute will attract a year in county jail and a maximum fine of $1,000.

Aiding the Use of a Controlled Substance

If you are in an area where another person was using a controlled substance or helped them use the drug, you could be charged for aiding drug use under California HSC 11365. The elements of a crime under this statute include:

  • You visited or were present when another person used a controlled substance
  • You knew that the other person intended to use an illegal substance
  • You intended to help the person in using the illegal substance
  • You did something that encouraged the person to take the substance

Violation of HSC 11365 is a misdemeanor. A conviction under this statute is punishable by a maximum jail sentence of up to six months and a $ 1,000 fine. Sometimes, the judge could offer you alternative sentencing instead of jail time for this offense. Some common alternative substances for abetting a controlled substance include misdemeanor probation and pretrial diversion.

In most cases, these sentences are available for defendants without a lengthy criminal record and those without a violent past.

3)  Business Possession of Drug Paraphernalia

Under California HSC 11364.5, store owners who sell or display drug paraphernalia must display the items in a separate room. Additionally, they must verify that any person who enters where these tools are displayed is an adult. Unless you have legal authorization, it is a crime to operate in a place of business where drug paraphernalia is displayed, sold, stored, or manufactured.

Beyond the items used for consumption of the controlled substances, California law does not allow you to sell paraphernalia used for manufacture, weighing, or drug packaging, including:

  • Kits for cultivating, growing, or planting any specified plant from which a controlled substance can be derived.
  • Devices that are used to isomerize or strengthen the potency of controlled substances.
  • Balances or scales used to weight restricted substances
  • Kits for manufacturing a controlled substance
  • Bowls and spoons used for mixing controlled substances
  • Containers used to conceal or store the illegal substances
  • Adulterants and diluents used for cutting controlled substances

Although you will not face jail times for these violations, the state will seize all types of paraphernalia and revoke your business license.

4)  Under the Influence of a Controlled Substance

California HSC 11550 makes it a crime to be under the influence of a controlled substance without a prescription. When seeking a conviction under this statute, the prosecution must prove these elements beyond a reasonable doubt:

  • You willfully used a controlled substance.
  • You were under the influence at the time of the arrest. An individual is under the influence of a controlled substance if it affects their mental condition, nervous system, or physical condition.

When you face charges under HSC 1150, the prosecutor's testimony regarding your physical signs is key to your case. Additionally, the officer may ask that you submit to a drug test whose results will be used to establish that you were under the influence.

A violation of this statute is a misdemeanor, and a conviction will see you spend a maximum of one year in county jail. If this is your first drug-related offense, the court could order you to drug counseling and rehabilitation programs.

Find a Skilled Drug Chula Vista Crimes Defense Attorney Near Me

Many assume that a drug charge will only arise when you possess or manufacture a controlled substance. However, you could face serious charges under Health and Safety Code 11364 for possessing an item used to inject, inhale or consume a controlled substance. Under this law, paraphernalia could be anything from hypodermic needles, cocaine spoons, syringes, pipes, or rolling paper. Facing a conviction for possession of drug paraphernalia carries significant legal penalties, including lengthy jail time and hefty fines. Additionally, having a conviction for this offense on your record will have similar life-long consequences as a conviction for other drug crimes.

If you or your loved one faces an arrest and charges for violating HSC 11364, you must act fast and seek the guidance of a competent drug crime attorney. At Chula Vista Criminal Attorney, we work hard to defend your legal rights as we build a strong defense to fight the charges and secure a favorable outcome for your case. We serve clients seeking legal guidance and representation to fight charges for possession of drug paraphernalia and other drug crimes in Chula Vista, CA. Call us today at 619-877-6894.