San Diego Attorney for Possession of Drug Paraphernalia | Law Offices of Michael E. Cindrich

Drug paraphernalia refers to any equipment used to produce, conceal or consume illicit drugs. It often comes as a surprise to many people that things like bongs and scales can be illegal, especially when recreational marijuana is legal in California. The use and possession of drug paraphernalia for any other purpose than marijuana is illegal.

However, it is very often that drug paraphernalia is seized illegally during search and seizures.

San Diego Lawyer for Drug Paraphernalia Charges

If you’ve been arrested for drug paraphernalia, or found yourself charged with possession of drug paraphernalia after a traffic stop or drug crime, you need to speak with a lawyer. There is a high probability that the drug paraphernalia was seized illegally, and law enforcement rarely listens to reason from the average citizen. Instead, you need to contact an experienced attorney to represent you to law enforcement.

Attorney Michael Cindrich has decades of experience protecting people’s rights, including in cases involving drug paraphernalia and other drug related crimes. The Law Offices of Michael E. Cindrich serve San Diego County, including the cities of Chula Vista, Oceanside, Escondido, Carlsbad, El Cajon, Vista, San Marcos, Encinitas, National City and La Mesa, and San Diego proper.

Contact Michael Cindrich today for a free consultation at (619) 262-2500.

What are Drug Paraphernalia?

Drug paraphernalia and its definition are governed by California Health and Safety Code Section 11364. This law makes it illegal to possess devices, instruments, or paraphernalia intended for unlawfully smoking or injecting controlled substances other than marijuana. The law specifically mentions items such as opium pipes and other devices used for consuming substances listed in Schedules III, IV, and V, as well as certain narcotics outlined in Sections 11054 and 11055 of the California Health and Safety Code. These items can include:

Syringes
Hypodermic needles
Rolling papers
Spoons
Tourniquets
Roach clips

Specifically, the law defines drug paraphernalia as any instrument, device, or contrivance used for unlawfully injecting or smoking controlled substances. These items are considered illegal when their purpose is tied to the consumption of drugs classified under the Uniform Controlled Substances Act.

As a reminder, paraphernalia related to cannabis use is excluded from prosecution under Section 11364 due to California’s cannabis legalization laws. Additionally, possession of hypodermic needles or syringes is lawful under certain public health exceptions.

What Must a Jury Consider in a Possession of Drug Paraphernalia Case?

To convict a defendant of possessing drug paraphernalia under Health and Safety Code Section 11364, the prosecution must prove the following elements beyond a reasonable doubt:

Unlawful Possession of an Object: The defendant possessed an object used for unlawfully injecting or smoking a controlled substance.
Knowledge of the Object’s Presence: The defendant was aware of the presence of the object.
Knowledge of the Object’s Purpose: The defendant knew that the object was intended for the unlawful use of controlled substances.

These requirements are outlined in Judicial Council of California Criminal Jury Instructions (CALCRIM No. 2410). If multiple items are alleged as paraphernalia, jurors must unanimously agree on at least one specific item to convict.

What Are the Penalties for Possession of Drug Paraphernalia in California?

Possession of drug paraphernalia in California is classified as a misdemeanor under Health and Safety Code Section 11364.

A conviction may result in fines up to $1,000 and a jail sentence of up to six months in county jail. However, courts frequently impose probation as an alternative to incarceration, often requiring defendants to participate in drug counseling or rehabilitation programs.

Repeat offenders or cases involving aggravating factors, such as the presence of paraphernalia in connection with drug sales, may face harsher penalties. Additionally, defendants charged with possession of drug paraphernalia often have the option to enter diversion programs, which allow for dismissal of charges upon successful completion of court-ordered treatment.

Non-Jail Options

Probation and alternative sentencing options are commonly available for individuals charged with possession of drug paraphernalia under California Health and Safety Code Section 11364, particularly for first-time offenders or those with mitigating circumstances. Alternatives include:

Diversion Programs: Many courts offer drug diversion programs under Penal Code Section 1000, which allow individuals to avoid a conviction if they complete treatment or counseling requirements successfully.
Deferred Entry of Judgment (DEJ): Defendants may qualify for deferred judgment, where charges are dismissed upon meeting specified requirements.

What Are Potential Defenses to Possession of Drug Paraphernalia?

The Defendant Had No Knowledge of the Item’s Presence
A key defense to possession of drug paraphernalia is proving the defendant was unaware of the object’s presence. If the item was found in a shared space or belonged to another individual, the prosecution may struggle to establish knowledge beyond a reasonable doubt.

The Item Was Not Intended for Drug Use
Items commonly associated with drug paraphernalia, such as pipes or spoons, can have legitimate uses. Demonstrating that the item had a lawful purpose, such as culinary or artistic applications, can convince law enforcement to dismiss the charges.

The Police Conducted an Illegal Search and Seizure
The most common defense against possession of drug paraphernalia is that the items were seized illegally. If law enforcement violated the defendant’s Fourth Amendment rights by conducting an unlawful search or seizure, the evidence obtained is likely inadmissible in court. Without evidence, the case may be dismissed.

Additional Resources

California Health and Safety Code Section 11364
California law explains the prohibition against possessing drug paraphernalia used for injecting or smoking controlled substances. The law covers exceptions for certain items, such as hypodermic needles for personal use, under specific public health circumstances. Readers can learn about the law’s specific language, penalties, and public health exemptions.

Drug Paraphernalia Fast Facts
This document from the U.S. Department of Justice provides a detailed overview of drug paraphernalia. It explains what drug paraphernalia are, where they are sold, and how they are used. The source also outlines federal laws prohibiting the sale and distribution of drug paraphernalia and provides examples of these items, such as pipes, bongs, and syringes.

Drugs and Drug Paraphernalia
Published by the California Department of Alcoholic Beverage Control, this guide details laws governing drug paraphernalia in businesses with on-sale liquor licenses. It outlines penalties for selling or allowing the sale of drug paraphernalia and associated controlled substances on licensed premises. The source also covers the legal consequences for licensees and employees.

Trafficking in Drug Paraphernalia
Health and Safety Code 11364.7 covers criminal penalties for manufacturing, delivering, or selling drug paraphernalia with the intent to enable drug use. It includes penalties for providing paraphernalia to minors and the potential forfeiture of licenses for business owners involved in paraphernalia trafficking.

Hire an Attorney for Drug Paraphernalia in San Diego County, CA

Contact Michael Cindrich today for a free consultation at (619) 262-2500.