When most people overhear friends or newscasters speaking about drug crimes, many think about offenses involving the transportation, manufacture, possession, or unlawful sale of controlled substances. However, it is also possible to run afoul of the law by having in your possession any device or item used to ingest or inject controlled or unlawful drug substances.
If you are under arrest or in police custody for alleged possession of drug paraphernalia, you could need the services of an attorney. Aside from the possible jail time and unaffordable fine, a conviction for possession of drug paraphernalia could damage your reputation, and our attorneys at Koenig Law Office understand that more than anyone else.
If you or someone you love is under investigation or awaiting trial for alleged possession of drug paraphernalia, our attorneys can help you wherever you are in Bakersfield. We will keenly and carefully review the facts of your case and the law applicable to your case to prepare defense arguments that will put you on the safest of the law for the best possible outcome on your charge.
Possession of Drug Paraphernalia Charge Explained
Possession of drug paraphernalia offense is a common drug crime chargeable and punishable under Health and Safety Code (HS) 11364. According to this statute, it is a misdemeanor offense to have tools, devices, instruments, or items used for unlawfully ingesting, smoking, or otherwise injecting controlled drug substances such as:
For the sake of this statute, paraphernalia is a broad term referring to almost anything you can use to smoke or use unlawful drugs. Below are examples of common drug paraphernalia:
- A pipe
- Hypodermic needles
- Miniature cocaine spoons
- Roach clips
- Rolling papers
However, syringes and hypodermic needles are exempt from this statute if you had them legally for personal use due to an underlying medical condition. Similarly, paraphernalia or items that are typically associated with the sale or manufacture of controlled drug substances are also not covered under HS 11364, including:
- Scales and balances
The Arraignment Hearing After An Arrest for an Alleged HS 11364 Violation Charge
Undoubtedly, being accused of or charged with a crime is a frightening experience. However, you can protect your best interests and increase your chances of challenging the charge by retaining the services of an attorney. Your attorney will be your legal counsel and representative in all stages of the legal justice system, including the arraignment hearing.
The arraignment hearing will be your first court date, typically within forty-eight hours after an arrest. Unless the court needs your presence during this hearing, your defense attorney can show up on your behalf to fight for the best possible outcome on the alleged charge. Here is what to expect during this stage of the legal justice system:
The Court Will Read the Accused Charges You are Up Against and Your Legal Rights
First, the judge with the jurisdiction over your case will inform you of the specific charges you are up against and advise you of your constitutional rights, which include:
- Right to remain silent
- Right to have a public defender represent your best interest if you cannot afford a private attorney
Once the judge confirms that you are aware and understand your legal rights, he/she will give you the option to enter a plea choice regarding the alleged charges. Below are the plea choices the court will give you:
- No Contest
- Not Guilty
Since your plea choice can significantly impact the alleged case’s outcome, the plea choice you will choose should be well thought out. Your attorney will review your case details and advise of the best and most favorable plea choice for your unique case.
Determine Your Eligibility for Bail and Your Case’s Bail Amount
Since you are not yet guilty of the alleged offense, you have a right to post bail to secure your release, pending your case’s trial. Even if the arresting officers do not have a predetermined bail amount for the alleged charge in their bail schedule, staying behind bars until your case’s judgment is not an option.
At the arraignment hearing, the court will also determine whether you deserve to be out of custody on bail. Bail is typically the money you pay to the court’s clerk upon an arrest to act as security for your freedom before your case’s verdict. In determining whether to grant your bail request, the court will consider various factors, including:
- Your likelihood of returning to court once you obtain your release
- Your likelihood of fleeing the state or country
- The alleged case severity
- Your employment status
- Your community and family ties
- Your record of appearing to court after obtaining your freedom on bail
Elements the Prosecutor Must Prove for a Conviction for the Alleged HS 11364 Violation Charge
If the prosecutor decides to file the alleged charges, it will be upon him/her to convince the court beyond a reasonable doubt that the allegations you are facing are true. To secure a conviction against you for the alleged HS 11364 violation charge at trial, the prosecutor must provide evidence to support and prove the following elements:
- You unlawfully had an object or item for injecting, smoking, or using controlled drug substances in your possession
- You were aware the object was in your possession
- You were aware that the device or item you had in your possession qualifies as a drug paraphernalia
According to HS 11364, having the drug paraphernalia or item in your possession means it was in your person, bag, vehicle, or any other place within your reach, for example, your bedroom or kitchen.
Under certain circumstances, possession of marijuana smoking tools like rolling papers could be legal since Proposition 64 allows adults aged 21 and above to smoke or use marijuana for recreational purposes. If you had a legal right to have the alleged drug paraphernalia or item, your attorney could challenge the prosecutor’s case against you to obtain the best desirable outcome.
Penalties and Consequences of the Alleged HS 11364 Violation Charge Conviction
As mentioned in the previous paragraph, possession of drug paraphernalia is a misdemeanor offense. If the prosecutor secures a conviction against you for the alleged 11364 violation charge, legal penalties you could face include:
- Up six months of custody in the county jail
- A fine not exceeding $1,000
- Informal probation
- Perform community service
In addition to the above legal penalties, a conviction for the alleged HS 11364 violation charge will also result in a criminal record which can negatively impact your life even after serving your sentence. Here are the possible negative consequences of having a conviction for HS 11364 violation in your record:
- If you were planning to take your career to the next level, you could experience difficulties obtaining a professional license or securing a reliable employment
- If you want to rent a house or apartment, a potential landlord could discriminate against you due to a past conviction record
For all these reasons, you should strive to avoid a conviction for the alleged HS 11364 violation charge by all means. A skilled and aggressive attorney will stop at nothing until he/she obtains the best attainable outcome in your case. The best possible outcome in the alleged charge could be either of the following:
- A case dismissal
- A reduced charge with a lighter sentence and fine
- Misdemeanor probation
Misdemeanor Probation As an Alternative Sentencing for the Alleged HS 11364 Charge Conviction
Instead of serving your sentence behind bars, the court could allow you to participate in misdemeanor or informal probation upon conviction for the alleged HS 11364 violation charge. Unlike felony probation supervised by a court-appointed probation officer, during misdemeanor probation, the court directly supervises you to ensure your adherence to the required conditions.
While the court will craft your probation conditions depending on your unique case facts, some of the common conditions the judge could require you to adhere to include (but are not limited to):
- Pay the required fine
- Complete a drug education or counseling program
- Perform community service
- Obey all laws
- Seek employment
- Stay drug-free
When you fail to adhere to these conditions during your probation period, which could last for up to one year, the court could decide to:
- Terminate the probation and sentence to a jail term for the maximum period required under HS 11364
- Reinstate your probation and modify some or all of its conditions
Alternative Sentencing for the Alleged HS 11364 Violation Charge
If you are a first-time offender, you could be eligible for a drug diversion program to avoid possible incarceration and a criminal record. If you are in custody for an alleged HS 11364 violation charge, your attorney can negotiate with the prosecutor to obtain a favorable plea deal, including a drug diversion.
According to PC 1000, you could be eligible to resolve the alleged HS 11364 violation charge by participating in a drug diversion program if:
- You are not on probation for a crime
- Your possession of drug paraphernalia did not involve threats of violence or violence
- You do not have past drug convictions on your record
- You have not participated in any diversion program in the past five years
- You have not had a felony conviction in the past five years
If the court or the prosecutor allows you to participate in a drug diversion program under PC 1000, you typically must enter a guilty plea. In exchange, the court will dismiss and seal your case once you complete the recommended diversion program satisfyingly and successfully as required. That means your offense will not appear on your criminal record.
Defenses a Reliable Attorney Can Apply to the Alleged HS 11364 Violation Charge
Generally speaking, there are several defense options an experienced and reliable attorney can raise at trial on your behalf to convince the court to drop or reduce the alleged HS 11364 violation charge. The most common and most applicable defenses that can weaken the prosecutor’s case against you for the best possible outcome include:
The Drug Paraphernalia Obtained Was a Result of an Unlawful Search and Seizure
Under the 4th Amendment of the Constitution, you have a legal right against unlawful or warrantless searches. If the drug paraphernalia in question was obtained through unlawful search and seizure activity by the police, the court could consider this evidence inadmissible.
That means it will not apply against you to prove a fact or element of the alleged HS 11364 violation charge. If that is the case, the court could decide to drop or reduce the alleged charges to a less severe charge.
The Device Was Not a Drug Paraphernalia
For a conviction for the alleged HS 11364 violation charge, the prosecutor must prove to the court that the device in question is drug paraphernalia. Therefore other devices like toy syringes do not qualify as drug paraphernalia, even if it closely resembles a medical syringe for injecting drugs into your body.
Even if the device in question was a medical syringe, your defense attorney could argue the tool was for injecting prescription drugs into your sick animal or pet to obtain the best possible outcome on the accused charge.
You Did Not Have Legal Control Over the Drug Paraphernalia
To convict you for the alleged HS 11364 violation charge, the prosecutor will have a legal burden to prove you had drug paraphernalia in your possession. Even if the obtained drug paraphernalia was within your reach or in your apartment, it does mean you had control over it.
Your defense attorney can challenge the prosecutor’s case against you by arguing that the obtained paraphernalia belongs to a roommate to convince the court to reduce or dismiss the alleged charge.
You Were Unaware the Object Was Paraphernalia
Even if the arresting officers did find drug paraphernalia or a device in your possession, if you were unaware it was paraphernalia, you will not be guilty of the alleged HS 11364 violation charge. When determining whether you knew the object or device was drug paraphernalia, the court will consider whether you have drug-related convictions on your criminal record.
The court could consider this defense reasonable and viable if you are a first-time offender and do not have a drug charge conviction on your criminal background.
You Were Unaware of the Paraphernalia’s Presence
Even if you had the paraphernalia in your possession, the prosecutor could not convict you for the alleged HS 11364 violation charge if you were unaware of its presence. Below are examples of instances when this defense could be applicable to challenge the alleged HS 11364 violation charge for the best attainable outcome:
- Your cousin borrowed your jacket and left his/her rolling papers in the pockets
- Someone left his/her marijuana smoking pipe in your car’s backseat
Other Drug Crimes Related to Possession of Drug Paraphernalia Offense
The prosecutor could decide to pursue other related drug charges against you if his/her evidence is insufficient to convict you for the alleged HS 11364 violation charge. Some of the related drug charges the prosecutor could file against you instead or alongside the alleged charge include (but are not limited to):
Operating a Business that Distributes or Sells Drug Paraphernalia
According to HS 11364.5, it is illegal to operate a business where paraphernalia is displayed, stored, or sold for use unless these items are in a separate room that is locked and inaccessible to minors (people under 18).
If you are guilty of HS 11364.5 violation, you could lose your business license or permit and face criminal penalties. Also, the state is likely to seize and forfeit the drug paraphernalia.
Manufacture, Furnish, or Sale of Drug Paraphernalia
Another drug paraphernalia law similar to or related to HS 11364 is HS 11364.7. According to this law, it is a misdemeanor offense to manufacture, furnish, transport, or sell drug paraphernalia when you know the person will use this device for unlawful drug use or sale activities. Further, this section also makes it illegal for adults to transfer, furnish or sell drug paraphernalia to minors.
Depending on your case’s particulars and circumstances, the alleged HS 11364.7 violation charge is chargeable as either a misdemeanor or a felony. A misdemeanor conviction will result in a jail term of up to one year and a fine not exceeding $1,000.
However, if the prosecutor files your HS 11364.7 violation charge as a felony, a conviction will result in harsher penalties, including:
- Up to three (3) years of detention in the state prison
- Up to $10,000 maximum fine
Possession of a Controlled Drug Substance
If you had a controlled drug substance at the time of the arrest, the prosecutor could charge you with possession of a controlled drug substance under HS 11350(a). According to the Controlled Substances Act (CSA), a controlled drug substance could include both unlawful and lawful prescription drugs.
If you are ineligible for a drug diversion under PC 1000, a conviction for possession of a controlled drug substance will result in up to a $1,000 maximum fine and up to one (1) year jail term.
Find a Defense Attorney Near Me
If you or someone you love is under investigation or charged with possession of drug paraphernalia offense under HS 11364, our reliable attorneys at Koenig Law Office can help. We invite you to call us at 661-793-7222 to schedule your initial cost-free consultation with your attorneys wherever you are in Bakersfield, California.
Our experienced attorneys will do what they do best to help you convince the prosecutor or the court to drop or reduce the alleged charges to a lighter offense with less severe consequences upon conviction.