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Health and Safety Code 11364 Possession of Drug Paraphernalia Laws in California- IE-Criminal Defense

H&S 11364: Possession of Drug Paraphernalia

Legal Definition: (a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking…a controlled substance…

In order to establish guilt under HS 11364, the prosecution must satisfy the following elements:

  1. The defendant unlawfully possessed an implement intended for the injection or inhalation of a controlled substance.
  2. The defendant was aware of the presence of said implement.
  3. The defendant had knowledge that the implement was designed for the illicit injection or inhalation of a controlled substance.

As an experienced authority in this field, I can confidently assert that these elements must be proven beyond a reasonable doubt.

What does this mean?

Possession of a device for smoking marijuana, without further specifics, does not amount to a criminal offense. Illustrative instances falling within this category include methamphetamine pipes or items such as cocaine spoons. Until 2021, possession of hypodermic needles or syringes, intended solely for personal use and obtained lawfully from sources like pharmacies, remains permissible. Here, possession encompasses both physical and constructive possession. Physical possession denotes physically carrying the item.

Constructive possession may arise when one exercises control over the item or possesses the right to exercise control either singly or jointly with another individual. Hence, multiple individuals may possess drug paraphernalia simultaneously. Certain items are not subject to this section; for instance, possession of scales/balances for drug weighing purposes, blenders/spoons or mixing devices, balloons, and capsules do not qualify as drug paraphernalia. Possession of such items typically leads to violation under HS 11351 or HS 11352.

Controlled substances falling within this section encompass depressants, stimulants, hallucinogens, and opiates. Common drugs falling under these categories include cocaine, heroin, PCP, and methamphetamine. As per Prop 64, possession of marijuana for personal use is no longer a criminal offense.


A charge under HS 11364 is a misdemeanor offense. If you are convicted of this charge you could be sentenced to upwards of six months in County Jail. You would be required to serve at least 50% of that time in custody. You could also be subject to a fine up to $1000 for this charge. In addition, all paraphernalia present would all be confiscated by police as part of their investigation and likely destroyed.This is not a strike offense under the California Three Strikes law, and it is not a Sex Offense under PC 290. You could also face a suspension or loss of your Professional License if convicted, and if you are not a legal resident, you would face Deportation in Immigration Court since the offense is deportable, in that it is a crime involving drugs.

Common Defenses

  1. Statute of Limitations
  2. Violation of Rights
  3. Insufficient Evidence

This specific criminal provision necessitates a level of expertise on your part to determine whether the item in your possession qualifies as drug paraphernalia. In order to be implicated under this provision, it is not sufficient for you to merely possess the item; rather, you must possess the knowledge that the item in question is, indeed, drug paraphernalia. For instance, if your roommate requests you to hold a bag on their behalf, you cannot be found guilty of this offense if you are unaware that the contents of the bag constitute drug paraphernalia. In such a scenario, the evidence available would be insufficient to establish your guilt. Furthermore, it is also a valid defense to assert that you were unaware of your possession of the drug paraphernalia. For instance, if a friend left an item in your car without your knowledge, proving this lack of knowledge would serve as a defense, highlighting the insufficiency of evidence to establish your guilt in this crime.

Another potential defense arises if law enforcement officers violate your rights against unlawful Search and Seizure. Such violations could occur if the police enter your residence without a proper warrant or without probable cause to search for drug paraphernalia. If such a violation were to occur, it would empower your Ontario Criminal Defense Attorney to file a Motion to Suppress Evidence, invoking a PC 1538.5 motion, in order to render the evidence inadmissible in your case.

Call Today

Facing charges under HS 11364 isn’t a fleeting concern; it’s a looming shadow that can profoundly reshape your life’s trajectory. Whether you’re eyeing an academic scholarship, climbing the corporate ladder, or seeking a serene neighborhood to call home, a drug-related conviction can slam many doors shut. And if you’re harboring dreams of a professional career, remember, drug convictions, even those from past missteps, can stall your path to professional licensing.

But here’s the silver lining – the right defense can make a world of difference.

At Inland Empire Defense, our Ontario HS 11364 attorney is not only seasoned in navigating the maze of drug-related legalities but boasts a distinguished track record in advocating for those ensnared by HS 11364 charges.

Don’t let a charge overshadow your potential. Engage with the best defense Ontario has to offer. Ring up the Inland Empire Defense at 909-281-0391. And with our office strategically located in Ontario, accessing premier legal defense has never been easier.

Disclaimer: The legal information presented at this site should not be construed to be formal legal advice, nor should it be considered the formation of a lawyer or attorney-client relationship. If you would like to find out more information about your particular legal matter, contact our office for a consultation.

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