What are the factors or elements for 11364 H&S Possession of Drug Paraphernalia?
Health and Safety Code 11364 HS California’s “possession of drug paraphernalia” law prohibits possessing “an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance”.
In order to convict you of this offense, the prosecutor must prove the following three facts (otherwise known as “elements” of the offense):
- That you exercised control over…or had the right to control…drug paraphernalia,
- That you knew of the paraphernalia’s presence, and
- That you knew it was drug paraphernalia.
How can we defend you against charges of California Penal Code 11364 H&S Possession of Drug Paraphernalia?
You didn’t have control over the paraphernalia
If you didn’t have control over the paraphernalia, then you shouldn’t be convicted of this California drug offense.
The object wasn’t paraphernalia
Just because the object looks like something that can be used to inject or consume illegal drugs, doesn’t necessarily mean that it actually is. Maybe it’s a tool that you use to administer prescription drugs to your sick or injured animal. Maybe it’s a pipe that you use to smoke tobacco.
In order to be convicted of this offense, the prosecutor must prove that you possess drug paraphernalia…other objects do not satisfy this criteria.
You didn’t know the object was paraphernalia
Even if the police do find drug paraphernalia in your possession, if you didn’t know it was paraphernalia, you aren’t guilty of this crime. Clearly, this defense works best for those individuals who do not have a criminal history…especially a criminal drug history.
You didn’t know about the paraphernalia’s presence
Again, let’s say that the police do find you in possession of paraphernalia. If you didn’t know you possessed it, you should be acquitted of this offense.
There are an infinite number of instances where this defense could be applicable. Someone borrowed your jacket and left a pipe in the pocket. Someone left his needle in your car under the passenger seat. Someone placed a vial in your purse to avoid being caught himself.
The paraphernalia was discovered during an illegal search and seizure
Oftentimes, drug paraphernalia is discovered during the course of an illegal search and seizure.
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Please call our office today at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation.
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Please CLICK HERE to visit our dedicated page on drug crime charges for more info.