Syringes
Section 11364 of the Health and Safety Code makes it a crime to possess any device that is used for “unlawfully” injecting or smoking certain controlled substances. The word “unlawfully” distinguishes, for example, a diabetic’s lawful possession of a syringe for the injection of insulin from the unlawful possession of a syringe to inject heroin.
Prior to January 1, 2015, drug users in California counties that participated in the Disease Prevention Demonstration Project could lawfully possess syringes by obtaining them from an “authorized source,” provided they were possessed for personal use (rather than for the purpose of reselling them). A licensed pharmacy is a common example of an “authorized source.”
That law facilitated needle exchange programs to combat AIDS. However, it was illegal to possess more than ten syringes at one time. Individuals arrested before 2015 can still be prosecuted for violating the paraphernalia law if they possessed more than ten syringes that they used to inject illicit drugs.
Effective January 1, 2015, section 4145.5 of the Business and Professions Code provides that “notwithstanding any other provision of the law,” a person who has reached the age of 18 may obtain an unlimited number of syringes from a physician or pharmacist for personal use. No prescription is required if the dispensing pharmacy meets certain standards.
It is important to understand, however, that syringe possession can still be prosecuted if the syringes were not obtained from a pharmacy or doctor or if syringes are possessed for the purpose of reselling them to users of illicit drugs.
Pipes & Spoons
Section 11364 HS specifically mentions opium pipes, but it broadly criminalizes the possession of any pipe used to unlawfully ingest certain controlled substances. Marijuana pipes are not covered by section 11364. Crack pipes and devices use to smoke methamphetamine (even if homemade) are the most common examples of “smoking” paraphernalia covered by the law.
A coke spoon is another example of illegal drug paraphernalia. For that matter, a rolled-up dollar bill used to snort cocaine is technically paraphernalia. Since spoons and dollar bills have legitimate uses, it is difficult for prosecutors to prove that they were possessed for an unlawful purpose unless they are covered with drug residue or the user is caught in the act of using them. In those cases, a paraphernalia charge is usually added to more serious drug possession charges.
Defenses to Paraphernalia Possession in Orange County
Defenses to a paraphernalia possession charge include:
- The accused individual did not actually possess the item. For example, if it isn’t yours and you have no right to use it, you do not possess a pipe even if you happen to be nearby when the police discover it.
- The accused did not know about the item. If someone left paraphernalia in your car and you did not know about it, you did not commit a crime.
- The item was not actually drug paraphernalia. If the prosecutor can’t prove that the item was intended for use in consuming drugs, the prosecutor is not entitled to a conviction.
- The accused did not know the item was drug paraphernalia. If someone gives you a crack pipe from which the “rose??? has not been removed and you keep it in the belief is a novelty item rather than drug paraphernalia, you have not committed a crime.
In addition to the factual defenses described above, legal defenses can be raised. Challenges to the legality of the search and seizure of drug paraphernalia are among the most successful defense strategies.
Manufacture & Sale of Drug Paraphernalia In Orange County
It is not unusual to find head shops, smoke shops, and other businesses that sell drug paraphernalia in Orange County. Those businesses are prohibited from displaying drug paraphernalia in areas that are open to minors. A violation of that law can result in costly forfeitures of the merchant’s improperly displayed goods. It can also result in the revocation of business licenses.
Other California laws applying to drug paraphernalia (other than marijuana pipes) make it illegal to:
- Manufacture drug paraphernalia with the knowledge that it will be put to an illegal use. While the crime applies to businesses that make paraphernalia, it also applies to meth pipes made from lightbulbs or crack pipes fashioned from radio antennas.
- Furnishing drug paraphernalia to another person with knowledge that it will be put to an illegal use.
- Furnish drug paraphernalia to a minor.
- Possess a syringe on school grounds knowing that a minor will use it to inject illegal drugs.
Frequently Asked Questions
What Does California Consider Drug Paraphernalia?
California law generally focuses on whether an item is intended for the unlawful use of a controlled substance. The item does not necessarily have to be specifically manufactured for drug use. Depending on the circumstances, an ordinary object may become relevant to a paraphernalia prosecution if the evidence indicates that it was possessed or intended for unlawful drug use.
Do Police Have to Find Drugs to Charge Someone With Paraphernalia Possession?
Not necessarily. A person may potentially face a paraphernalia charge even when officers do not find drugs at the scene. However, the prosecution still has to establish the elements of the offense, including that the accused knowingly possessed an item that was intended for an unlawful purpose covered by the statute. The absence of drugs may be an important fact when challenging the prosecution's interpretation of the evidence.
Can Drug Residue on an Object Lead to a Paraphernalia Charge?
Drug residue can be used as evidence that an object was associated with unlawful drug use, but residue alone does not automatically establish every element of a paraphernalia offense. The prosecution may need to establish who possessed the item, whether the accused knew about it, and what the item was intended to be used for. The circumstances surrounding the discovery can therefore be important to the defense.
Can I Be Charged With Paraphernalia Possession if the Item Belongs to Someone Else?
Possibly, but simply being near an item does not necessarily establish possession. The prosecution generally must connect the accused to the item and establish the required knowledge and possession elements. If paraphernalia was found in a shared vehicle, residence, or other location accessible to multiple people, questions about ownership, knowledge, and control may become particularly important.
Can a Drug Paraphernalia Charge Be Defended by Challenging the Police Search?
Yes. If police discovered alleged paraphernalia during a search, the legality of that search may be an important part of the defense. Depending on the circumstances, an attorney may challenge whether officers had a warrant, probable cause, valid consent, or another lawful basis for conducting the search. If evidence was obtained unlawfully, the defense may be able to seek its exclusion.
What Happens If Drug Paraphernalia Is Found During a Traffic Stop?
The consequences depend on how the item was discovered and the circumstances of the traffic stop. Police may search a vehicle under certain circumstances, but constitutional limitations apply to searches and seizures. An attorney can examine the reason for the stop, what officers observed, whether consent was requested or given, and how the alleged paraphernalia was discovered.
Can a Drug Paraphernalia Charge Be Dismissed?
A dismissal may be possible depending on the facts and weaknesses in the prosecution's case. Problems with possession, knowledge, the identity or purpose of an item, or the legality of the search may provide grounds for challenging the charge. In some cases, negotiations with the prosecutor may also result in a dismissal or another resolution that avoids a conviction.
Will a Drug Paraphernalia Conviction Affect My Driver's License?
A paraphernalia conviction does not automatically result in the same driving-related consequences associated with every drug or DUI offense. However, the overall circumstances of a drug-related arrest may create additional legal issues. If the case involves other allegations, such as drug possession or impaired driving, those charges may carry separate consequences for driving privileges.
Can a Drug Paraphernalia Conviction Affect My Professional License?
It can. Professional licensing agencies may consider criminal convictions when evaluating an applicant's fitness, discipline, or eligibility for a license. The consequences depend on the profession, the licensing agency, and the circumstances of the conviction. Anyone whose career depends on a professional license should consider those potential consequences before entering a plea.
What Should I Do After Being Arrested for Drug Paraphernalia Possession in Orange County?
An arrest does not mean that the prosecution can prove its case. Avoid discussing the facts of the incident with police or other parties without first obtaining legal advice, and preserve documents or information relating to the arrest. An Orange County drug paraphernalia lawyer can review the evidence, determine whether the search was lawful, identify potential defenses, and assess whether dismissal or another favorable resolution may be possible.
Representation for Orange County Paraphernalia Offenses
Blemishing a clean criminal record with a criminal conviction can do immense harm to a career. Individuals accused of paraphernalia offenses who have prior convictions may face harsher sentences because of a criminal record. With an Orange County drug paraphernalia lawyer from the Law Offices of Randy Collins by your side, you are likely to receive a favorable outcome to your case.
Contact our Orange County drug paraphernalia attorney by completing our online form or calling (844) 524-4011today.
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