Health and Safety Code 11364 HS – Possession of Drug Paraphernalia

Under California law, Health and Safety Code § 11364 HS makes it a misdemeanor offense to possess drug paraphernalia. This law is primarily focused on discouraging the use of illegal drugs by targeting the tools associated with their use.

This guide will explore:

• What qualifies as drug paraphernalia

• Legal penalties

• Common defenses

• Exemptions

• Diversion and treatment options

• Long-term impacts of a conviction

By understanding the scope and consequences of this law, individuals can better navigate the legal system and seek informed legal counsel if needed.

What Is Considered Drug Paraphernalia in California?

Drug paraphernalia refers to any device or object that is used for the purpose of consuming illegal controlled substances. California law defines this broadly. Some commonly known examples include:

• Glass pipes, often used for methamphetamine or crack cocaine

• Small spoons used to ingest powder drugs

• Mirrors, razor blades, and straws used for preparing or snorting drugs

• Bongs and other smoking devices used for substances like heroin or meth

• Burnt aluminum foil or makeshift smoking devices.

Law enforcement will consider the context in which the item was found—such as drug residue or location—to determine if it qualifies as paraphernalia. Items like scales, baggies, and pill presses may not be covered by HS 11364 but could be prosecuted under other drug-related laws if tied to drug sales or distribution.

Elements of the Offense

To be found guilty under Health and Safety Code 11364 HS, the prosecution must prove:

1. The defendant possessed an item defined as drug paraphernalia.

2. The defendant knew of the item’s presence.

3. The defendant knew that the item was used, or intended to be used, for unlawfully injecting or consuming drugs.

It’s not necessary for drugs to be present at the time of the arrest. Merely possessing the tools can be enough to face charges.

Exemptions: Legal Possession of Syringes

An important exception exists under California law for hypodermic needles and syringes:

• Individuals are allowed to possess up to a specified number of clean syringes for personal use.

• These must have been obtained from an authorized source, such as a pharmacy or syringe exchange program.

This exemption was created as a public health measure to help prevent the spread of communicable diseases. However, it does not apply to other drug paraphernalia.

Penalties for Possession of Drug Paraphernalia

Under California law, possession of drug paraphernalia is typically charged as a misdemeanor.

Possible penalties include:

• Up to 6 months in county jail

• A fine of up to $1,000

• Probation

• Drug counseling or education programs

• Community service

In many first-offense situations, a judge may offer probation or an alternative sentencing option, particularly if the defendant is not accused of possessing drugs for sale or distribution.

Common Legal Defenses to HS 11364 Charges

There are several ways an experienced attorney might defend someone against a paraphernalia charge:

1. Unlawful Search and Seizure

If police conducted a search without a warrant or probable cause, the evidence could be suppressed in court.

2. No Possession

The defendant may argue they did not possess the item knowingly or that it belonged to someone else.

3. Lack of Knowledge

A defendant must have known the paraphernalia was in their possession and intended for drug use.

4. The Object Was Not Drug Paraphernalia

Items like spoons or plastic straws might have innocent uses. The context in which they were found matters.

5. Entrapment

If the individual was persuaded or tricked by law enforcement into committing the crime, this may be a valid defense.

Each case is unique, and the effectiveness of any defense depends on the facts involved.

Drug Diversion and Treatment Programs

California offers several drug diversion programs that may allow defendants to avoid jail time and instead receive treatment.

Key Programs:

• PC 1000 (Pretrial Diversion)

• Proposition 36

• Drug Court Programs

These typically involve:

• Drug education or rehabilitation

• Regular drug testing

• Progress hearings with a judge

• Probation compliance

Successful completion can result in dismissal of charges. This not only avoids a criminal record but also supports recovery.

Expungement of a Conviction

If you are convicted under HS 11364 but complete all court-ordered requirements, you may be eligible for expungement under California Penal Code § 1203.4. An expungement means the case is dismissed in the eyes of the court and won’t appear on most employment background checks.

To qualify:

• You must have successfully completed probation.

• You must not be currently charged with or serving a sentence for another criminal offense.

Consequences Beyond the Courtroom

A conviction under HS 11364, even though it’s a misdemeanor, can lead to collateral consequences, such as:

• Job loss or difficulty finding employment

• Housing issues, especially in federally funded housing

• Professional licensing problems for nurses, teachers, lawyers, etc.

• Immigration consequences, including potential deportation for non-citizens

Because of these broad implications, many defendants seek legal advice early in the process.

Related Offenses

Several other California laws deal with illegal drugs and paraphernalia. Understanding how they interconnect is important:

• HS 11350 – Possession of a controlled substance

• HS 11377 – Possession of methamphetamine

• HS 11351 – Possession for sale

• HS 11550 – Under the influence of a controlled substance

While HS 11364 deals specifically with tools, these related laws target the drugs themselves, their sale, or use.

Conclusion

California’s Health and Safety Code § 11364 HS is a law that aims to reduce drug abuse by penalizing possession of the tools used to consume illegal drugs. Though the offense may appear minor, a conviction can have lasting effects on a person’s life, especially in terms of employment, licensing, and immigration.

If you’re facing a paraphernalia charge, it’s essential to:

• Understand your rights

• Explore legal defenses

• Consider alternatives like drug diversion

• Consult an experienced criminal defense attorney

Legal guidance can often lead to reduced penalties, dismissal, or alternative sentencing options that focus on rehabilitation instead of punishment.

Don’t face drug paraphernalia charges alone — contact Southwest Legal today for a free consultation and aggressive defense tailored to your case. Your future deserves the best defense.