Can I Be Arrested for Possession of Drug Paraphernalia in California?
California law prohibits the possession of a controlled substance if you don’t have a legitimate reason for carrying the substance, and it can result in a number of legal problems. But what about drug paraphernalia? The possession of drug paraphernalia can also result in minor infractions, and sometimes harsher punishments, while having serious long-term implications on your ability to find housing and employment. If struggling with a substance use disorder and certain criteria are met, charges could be expunged for those who successfully complete treatment at certain rehabs in California.
In this blog, we explain:
- The definition of drug paraphernalia
- Legal penalties and jail time associated with a drug paraphernalia conviction in California
- California drug paraphernalia laws
- What happens to first-time offenders of drug paraphernalia charges and conviction
- Whether to hire a criminal lawyer to defend a drug paraphernalia charge in California
How is Drug Paraphernalia Defined?
Drug paraphernalia is an umbrella term used to describe any equipment associated with drug use. Under California law — Health and Safety Code 11364 (a) — drug paraphernalia is defined as the possession of a pipe, or any device, contravance, or instrument used for unlawfully injecting a substance specified under California’s Controlled Substances Act (HSC - 11000-11651), including:
- Opium derivatives, such as heroin codeine, dihydromorphine, morphine
- Stimulants: cocaine and methamphetamine
Broadly speaking, drug paraphernalia devices and instruments might include:
- Syringes* and needles
- Inhalation tubes
- Rolling papers
- Combustion devices (i.e., something used to cook or vaporize drugs)
- Freebase kits
*Important note: Under California law (HSC-11364), you may not be charged with a drug paraphernalia offense for possession of syringes and needles for personal use, and syringes that have been safely disposed of in a sharps disposal container. This public health measure has been implemented until January 2026, in order to reduce the transmission of bloodborne diseases like HIV and viral hepatitis.
Are There Viable Defenses to Drug Paraphernalia Charges in CA?
Yes. There are three possible defenses to drug paraphernalia charges in California, including:
- No possession: A person can only be convicted if they possessed drug paraphernalia. Possession is defined as either active possession or constructive possession:
- Actual possession means paraphernalia must either be found on the person, in their pockets, or in their hands.
- Constructive possession means the person had knowledge and access to paraphernalia and was aware of intended use.
- Lawful possession: As mentioned above, under California law (HSC-11364), you cannot not be lawfully charged with a drug paraphernalia offense for possession of syringes and needles for personal use, or for syringes and needles that have been safely disposed of in a sharps disposal container.
- Unlawful search and seizure: Under the Fourth Amendment of the US Constitution, citizens have the right to be free from unlawful searches and seizures and arbitrary arrests, by police. If law enforcement were found to have searched a person without due cause, the evidence can be excluded from the case, and the charges are liable to get reduced or dismissed altogether.
In order to successfully prosecute a drug paraphernalia charge, the prosecution must prove beyond reasonable doubt that:
- The person possessed drug paraphernalia or knew it was drug paraphernalia, and
- The paraphernalia was used to ingest, inhale, or inject drugs
Penalties and Jail Time Associated With a Drug Paraphernalia Conviction in California
Like drug possession charges, drug paraphernalia charges are also classed as a misdemeanor in the state of California.* If successfully prosecuted, the penalties for drug paraphernalia charges include:
- Court fines of up to $1,000, and/or
- Imprisonment of up to six months in county jail
- Drug treatment programs, also known as drug courts, allow certain defendants (in cases of non-violent possession charges) to seek substance use disorder treatment instead of receiving a jail sentence. When the person completes the treatment and satisfies the conditions of the program, the charges are typically dropped. Failure to complete the program, however, can result in prosecution.
- Probation, which is often combined with other punishments like fines, means the person convicted must follow a set of conditions listed by the court and regularly check in with their probation officer. If the conditions are not met, the person may be imprisoned.
*Paraphernalia used in the manufacture of drugs — like scales, bags, balloons, and capsules — are not typically included in drug paraphernalia charges and are more likely to be pursued as a charge of felony possession with intent to supply.
Long-Term Consequences of Drug Paraphernalia Convictions
As with any offense, a conviction could have serious consequences on your life, as many applications and processes require declaring any conviction. As such, possession of a controlled substance may impact your ability to:
- Find work
- Secure a loan
- Keep your business license
- Rent an apartment
- Obtain or maintain any job requiring a license, like a doctor or nurse, and they may face revocation of their license, or restrictions
- Stay in the U.S. as a non-citizen, as convictions can result in deportation and revocation of visas
People convicted of drug paraphernalia offences may also face significant stigma and discrimination and be thought of as untrustworthy.
California Drug Paraphernalia Laws
Drug paraphernalia laws differ from state to state. Federally, drug paraphernalia is illegal in the United States under the drug paraphernalia statute, U.S. Code Title 21 Section 863, which makes it unlawful to sell, offer, or use drug paraphernalia, and to import or export drug paraphernalia. The law that governs drug paraphernalia charges in California is Health and Safety Code 11364 - 11376.5.
The key points of this California law include:
- It is unlawful to possess drug paraphernalia that is used to ingest, inhale, or inject controlled substances, defined under California Controlled Substances Act (HSC 11000-11651.
- It is lawful in California to possess 30 or less syringes / needles for personal use.
- A business that displays or sells drug paraphernalia must restrict access to people over the age of 18.
- Authorized public entities, like safe syringe programs, can lawfully provide syringes and needles to prevent communicable diseases and prevent drug overdoses, injuries, or disabilities.
- Drug paraphernalia possession offenses are typically classified as misdemeanors.
- Convictions for drug paraphernalia possession offenses are fines and/or up to six months imprisonment. Certain defendants may qualify for drug court programs and upon their successful completion, have the charges dropped.
According to a recent analysis of California state laws, recently proposed legislation would amend drug paraphernalia laws to:
- Exclude fentanyl testing strips from unlawful drug paraphernalia possession offenses
- Allow the cities of Los Angeles, Oakland, and San Francisco up to 5 years to approve entities that provide services to people who use drugs that include overdose prevention programs, safe syringe exchanges, and the use of opioid overdose reversal drug Narcan
- Exclude paraphernalia related to the use and testing of psilocybin dimethyltryptamine (DMT), ibogaine, mescaline, lysergic acid diethylamide (LSD), and 3,4- methylenedioxymethamphetamine (MDMA).
What About First-Time Offenders in California?
First-time offenders who are found with drug paraphernalia by law enforcement may have the drugs confiscated, they could be arrested and charged with a misdemeanor, or they could be allowed to go free if they meet exemptions under California drug possession laws.
Should You Hire a Criminal Defense Lawyer to Handle Drug Paraphernalia Charges?
Legal situations are often best handled by professionals with experience, special qualifications, and expertise. Defense lawyers will know your rights, be able to effectively navigate the law, present a solid defense strategy, and work hard to keep you from being convicted. Facing charges alone can be incredibly challenging, and you may not have a good grasp of the law, which is critical to upholding your rights.
California Legislative Information. California Law. Health And Safety Code - HSC
Division 10. Uniform Controlled Substances Act [11000 - 11651] - General Provisions
California Legislative Information. California Law. Health And Safety Code - HSC
Division 10. Uniform Controlled Substances Act [11000 - 11651] - Miscellaneous Offenses And Provisions https://Leginfo.Legislature.Ca.Gov/Faces/Codes_displaysection.Xhtml?Lawcode=Hsc&Sectionnum=11364
Cornell Law School. (n.d.). Legal Information Institute. Fourth Amendment. https://www.law.cornell.edu/constitution/fourth_amendment
Cornell Law School. (n.d.). Legal Information Institute. Constructive possession. https://www.law.cornell.edu/wex/constructive_possession
Legislative Analysis and Public Policy Association. (2022) Drug Paraphernalia: Summary of State Laws. https://legislativeanalysis.org/wp-content/uploads/2022/04/Drug-Paraphernalia-Summary-of-State-Laws-FINAL-1.pdf
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