If you are caught in possession of drug paraphernalia, you may be facing criminal charges. Possession of any device used to smoke or inject a controlled substance is a misdemeanor offense. Even if no drugs were in your possession, possession of the device is enough to result in an arrest.
Health and Safety Code 11364
Under California Health and Safety Code 11634, it is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance. This includes glass pipes, ceramic pipes, metal pipes, glass vials, razor blades, lighters, tin foil, or spoons. These are devices generally used to smoke or inject illegal drugs. In some cases, possession of needles is not a criminal offense which is intended to encourage clean needle use and avoid transmission of HIV and other diseases.
Possession is not limited to items found directly on your person, in your pocket, or in a backpack. Possession includes constructive possession. If the police pull you over and later find drugs in the trunk of your car, you may be considered to be in constructive possession because you were in control of the items in your vehicle. Even if the drugs or paraphernalia belongs to another person, you may be arrested for possession.
Penalties for Possession of Drug Paraphernalia in California
Possession of drug paraphernalia is generally a misdemeanor offense. Penalties include up to 6 months in jail, and a fine of up to $1,000.
Simple possession of drug paraphernalia may lead the police to conduct a more in-depth search. Paraphernalia generally gives the police probable cause to search an individual or their vehicle to look for drugs or evidence of drug sales. If the police find drugs or evidence indicating drug distribution, the individual may face additional charges with higher penalties.
Possession of Paraphernalia to Smoke Marijuana
After the passage of Proposition 64, marijuana paraphernalia is excluded from HS 11364. It is lawful in California for adults over the age of 21 to use marijuana for recreational purposes. Possession of the devices used to smoke marijuana is generally not a criminal offense. However, in some cases, individuals may use a device to smoke both marijuana and an illegal drug. If a pipe or other device is used for both legal and illegal drugs, possession may result in criminal charges.
In some cases, a first-time offender arrested for possession of drug paraphernalia may be able to take advantage of a diversion program to avoid a criminal record. A Deferred Entry of Judgment program allows first-time drug offenders to avoid prosecution if they complete a drug rehabilitation program. Upon successful completion of the program requirements, a judge may dismiss the possession charges. Other low-level offender programs may allow an individual to complete probation through an alternative drug penalty program instead of going to jail. Talk to your attorney about whether you may be eligible for a diversion program to avoid jail time.
East Bay Drug Crime Attorney
Lynn Gorelick has more than 30 years of criminal defense experience defending her clients from drug paraphernalia possession and other drug charges. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and maintaining a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa or Alameda Counties, contact Lynn Gorelick understands you do not have to plead guilty just because you were arrested.