It’s a crime in California to own drug paraphernalia associated to unlawful narcotics. Drug paraphernalia is outlined as miscellaneous gadgets utilized in reference to unlawful medicine exercise or use, equivalent to hypodermic needles, opium pipes, and so on. After all, some medicine should not unlawful in California and possession of paraphernalia associated to those non-illegal medicine shouldn’t be criminalized.

Frequent gadgets that could be thought-about drug paraphernalia below Well being & Security Code part 11364: meth pipes, hypodermic needles and kits, scales, plastic baggies, balloons, opium pipes, water pipes, miniature spoons, and extra. In actual fact, below California legislation, it is usually unlawful to own any gadgets associated to planting, rising, processing, analyzing, concealing, or testing of unlawful medicine (HS 11364.5 Abbrev.).

Word: Possession of drug paraphernalia doesn’t imply possession of things associated to authorized drug use or exercise. For instance, a scale or baggies utilized in reference to the authorized sale or use of marijuana shouldn’t be unlawful below HS 11364 as a result of the authorized sale or use of marijuana just isn’t an criminal activity.

Essential: Discover that some gadgets listed above are widespread home items that shouldn’t be thought-about in and of themselves drug paraphernalia below HS 11364. For instance, a plastic baggie or a spoon is a superbly authorized merchandise to own below most circumstance; nonetheless, when these gadgets are utilized in reference to unlawful drug exercise then these gadgets flip into contraband below HS 11364. The query in possession of drug paraphernalia instances turns into a query of the defendant’s intent. In different phrases, the defendant just isn’t responsible of HS 11364 until the prosecutor can show that the defendant supposed to make use of the merchandise in reference to unlawful medicine.

Circumstantial Proof of Intent: In most drug paraphernalia instances, the district legal professional will try to show the defendant’s intent to make use of an merchandise in reference to unlawful medicine by circumstantial proof. Which means the district legal professional will try to indicate that the circumstances are suggestive of the defendant’s intent. For instance, if the defendant is caught with small plastic baggies and spoon inside her backpack, however there are not any different gadgets within the backpack that recommend the plastic baggies and the spoon could be associated to a authorized objective, then the suggestion of that proof is that the plastic baggies and the spoon are associated to unlawful drug exercise. Frequent circumstantial proof utilized by the district legal professional in HS 11364 consists of: plastic baggies too small to make use of for meals, small spoons not situated close to meals (particularly spoons which have “drug stains” or spoons which can be bent to facilitate heroin use), location of proof discovered (close to medicine or in a recognized “drug home”), scales discovered close to medicine, needles present in possession of an individual who doesn’t have a medical situation that requires her to own needles, a glass pipe with drug stains on the pipe, drug residue on gadgets, a historical past of drug crimes listed on the defendant’s felony file, and so on.

Word: Each possession of drug paraphernalia case is totally different; due to this fact, the proof in each case is totally different. A circumstantial proof case is one which considers all of the proof in relation to the large image to be able to draw an acceptable inference. For instance, the possession of plastic baggies, by itself, just isn’t against the law. If it have been, college youngsters could be in a whole lot of authorized hassle. Whether or not or not a district legal professional can show his case with adequate circumstantial proof is set on a case-by-case foundation.

Direct Proof of HS 11364: Most instances of possession of drug paraphernalia contain circumstantial proof; nonetheless, instances that contain direct proof should not unusual. Direct proof of possession of a drug paraphernalia embrace: confession by the defendant, medicine discovered on or within the merchandise possessed (equivalent to medicine present in plastic baggies), witness statements towards the defendant that inform the police of the merchandise’s objective, and extra.

Possession Outlined: It’s unlawful to own drug paraphernalia below HS 11364. However what does possession imply in HS 11364 instances? Based on California legislation, possession of an merchandise might be precise or constructive. Precise possession signifies that the defendant has an merchandise on her physique, equivalent to when a defendant has medicine in her pants, shoe, backpack, and so on. Precise possession can embrace gadgets which can be inside the defendant’s private attain as nicely, equivalent to when medicine are on a desk close to the defendant. Constructive possession happens when an merchandise is inside the defendant’s management however not on the defendant or inside her speedy management. For instance, constructive possession happens when medicine are discovered within the defendant’s house or automobile (i.e. glovebox, trunk, backseat, hidden in a false compartment, and so on.).

Word: The district legal professional can’t show that the defendant is in violation of HS 11364 until the district legal professional can show the defendant possessed the drug paraphernalia. As acknowledged, proof of an merchandise as being drug paraphernalia might be confirmed by circumstantial and/or direct proof. The identical is true as to the possession of drug paraphernalia.

In sum, HS 11364 legislation states {that a} defendant is responsible of possession of drug paraphernalia provided that the defendant did the entire following: knew the merchandise possessed was used for medicine, supposed that the merchandise possessed could be used for medicine, knew of the gadgets presence, and truly or constructively possessed the merchandise decided to be drug paraphernalia.

HS 11364 Penalties

Jail: Possession of drug paraphernalia is charged as a misdemeanor in California. If discovered responsible of HS 11364, the defendant may resist 100 eighty (180) days within the county jail. That is along with a doable $1,000 nice and different punishments (See beneath).

Probation Sentence: A probation sentence is a interval of supervision as a substitute of jail. Probation sentences are widespread for first-time offender in HS 11364 instances, however a probation sentence just isn’t assured. A probation sentence in any HS 11364 case is taken into account casual probation, which signifies that the defendant is monitored by the courtroom versus being monitored by a probation officer. As well as, probation sentences are guided by phrases or situations of probation that have to be adopted to be able to keep away from a probation violation. The phrases of probation in HS 11364 instances often embrace: violate no legislation (throughout probation), pay fines, attend AA or NA lessons, search and keep employment, undergo drug testing, serve work launch or home arrest, serve neighborhood service, and extra.

Diversion Program: Some HS 11364 instances may qualify for diversion. Diversion is a state of affairs the place he defendant pleads responsible to the crime; thereafter, the defendant completes phrases of diversion which can be just like probation phrases. If the defendant efficiently completes diversion then the felony case towards the defendant is dismissed (diverted from felony prosecution). Diversion applications are often wonderful for licensed skilled who may lose their respective skilled license if his or her felony case have been in any other case not diverted. Diversion just isn’t out there in each possession of drug paraphernalia case. For extra info, see Diversion.

Work Launch: If the defendant is sentenced to jail pursuant to HS 11364, then she is often allowed to serve that jail sentence alternatively on a piece launch program. A piece launch program is a type of handbook labor that’s supposed to function a substitute for a jail sentence. Not each defendant convicted of HS 11364 will obtain a piece launch sentence (or home arrest). That is very true in HS 11364 instances which can be sentenced below a plea settlement the place the defendant agrees to serve a jail sentence and the sentencing decide doesn’t permit the defendant to differ the phrases of her plea settlement.

Extra Punishment: Along with any jail or probation sentence, a conviction for possession of drug paraphernalia can result in any of the next punishments: lack of driver’s license (if drug associated gadgets present in a automobile), necessary drug lessons (AA and/or NA), fines and charges, immigration issues (doable lack of the suitable to stay in, or reenter, the USA for non-US residents), lack of the suitable to enter into the armed forces (Area Drive, Military, Air Drive, and so on.), lack of employment, doable lack of sure rights in household legislation courtroom (baby custody, adoption, and so on.), loss the suitable to personal or possess a firearm for as much as ten (10) years, lack of the suitable to enter right into a diversion program (often for repeat HS 11364 offenders), loss or suspension {of professional} occupational licensing (medical doctors, dentists, legal professionals, academics, nurses, and so on.), and extra.

Word: Enterprise homeowners may lose their respective enterprise license(s) or leases for permitting different individuals to make use of, retailer, or manufacture unlawful medicine or drug paraphernalia on the enterprise property.

Defenses to HS 11364

Each HS 11364 case is totally different; due to this fact, each protection to a HS 11364 case is totally different. With this in thoughts, the commonest defenses utilized in possession of drug paraphernalia instances consists of: statute of limitations, coerced confessions, unlawful search and seizure, Miranda violations, inadequate proof to indicate precise or constructive possession, non permanent possession, and extra.

Momentary Possession Protection: Generally, a defendant can be in precise possession of drug paraphernalia, however that defendant is however not responsible of HS 11364 as a result of her possession of the drug paraphernalia is non permanent and lawful. For instance, if the defendant briefly takes a crack pipe from one other particular person in order that the opposite particular person is unable to make use of the crack pipe, the defendant shouldn’t be charged with HS 11364. This assumes that the defendant who took non permanent possession of the drug paraphernalia acted in good religion to cease against the law and solely took non permanent possession of the drug paraphernalia. Momentary on this sense means solely lengthy sufficient to cease the crime.

Private Use: With respect to hypodermic needles, California legislation permits an individual to own a syringe or hypodermic needle, as long as the syringe or hypodermic needle is used for private drug use solely and the merchandise is secured from knowledgeable supplier (i.e. physician, hospital, and so on.). This authorized exception to HS 11364 is about to finish in 2021.

Exceptions: Sure businesses and their respective brokers are legally exempt from HS 11364 crimes. These legally exempt businesses embrace: sure legislation enforcement personnel (together with police officer who possess drug paraphernalia within the common course of their duties), hospitals, medical doctors, pharmacists, dentists, veterinarians, and extra.