Many people believe that you have to be caught with a drug or controlled substance in order to be charged with a drug crime. However, in California it is also illegal to merely be in possession of drug paraphernalia. Under California Health and Safety Code Section 11364 HSC, possession of drug paraphernalia is a criminal offense that can result in jail time for those convicted.
Criminal Elements of Possession of Drug ParaphernaliaUnder California Health and Safety Code Section 11364 HSC, the prosecution would have to prove that the defendant possessed an object used for illegally injecting or smoking a controlled substance, that the defendant knew of the object’s presence and that defendant knew that the object was one intended for the use of illegal drugs.
Use of Innocent ObjectsDrug paraphernalia cases are not limited to hypodermic needles and crack pipes. Police often arrest people for possessing any object that can be used to smoke or inject drugs, including pens, soda cans and other items that are otherwise innocent. If the investigating officer is unable to find drugs on a suspect, he or she may falsely assume that one of these innocent objects is drug paraphernalia. In these cases an experienced drug crimes attorney can show how the defendant was not, in fact, guilty of a criminal offense.
Criminal Penalties for Possession of Drug ParaphernaliaPossession of drug paraphernalia under California Health and Safety Code Section 11364 HSC is a misdemeanor offense. Those who are convicted of this crime can be sentenced to serve up to six months in jail. The law requires that a defendant convicted of this offense be sentenced to a minimum of 15 days in custody. Defendants convicted of possessing drug paraphernalia may also be eligible for a drug diversion program that would ultimately prevent them from having a permanent criminal conviction on their record.
Defenses to Possession of Drug ParaphernaliaThere are many ways in which a defendant charged with possession of drug paraphernalia can fight his or her case. In many cases, the item in question may have been discovered as the result of an unlawful search or seizure. If this is the case, the defense can file a motion to suppress pursuant to California Penal Code Section 1538.5 PC. If granted, all evidence discovered during the unlawful search will be suppressed and the case will likely be dismissed.
In addition, if the object discovered was not actually possessed by the defendant or if the item would not be considered drug paraphernalia, the defendant would not be guilty of this crime.
Other Related OffensesIn some cases, law enforcement may look for drug residue in items that they suspect to be drug paraphernalia. If the substance discovered tests positive for a controlled substance, the defendant may be charged with possession of a controlled substance in violation of Californian Health and Safety Code Section 11350 HSC. The defendant could also be charged with possession of methamphetamine under California Health and Safety Code Section 11377 HSC if the controlled substance involved is methamphetamine, MDMA, GHB or PCP. If the amount of drug recovered is not in a “useable amount” the defendant could not be charged with a drug possession crime.
If you or a loved one have been arrested for possession of drug paraphernalia, it is critical that you speak with an attorney with experience in handling drug cases as soon as possible. Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who understands how to effectively defend individuals accused of drug crimes. Mr. Kraut works diligently to make sure his clients receive the most thorough representation possible.
For more information about possession of drug paraphernalia, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group Criminal & DUI Lawyers, Inc. located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at (323) 464-6453.