Drug paraphernalia still unlawful in California
With the widespread availability of medical marijuana in the Los Angeles area and reduced criminal penalties for drug possession under California Proposition 47, it’s not surprising that attitudes about drug paraphernalia are changing. However, many types of drug paraphernalia are still unlawful to possess, and the crime remains a misdemeanor punishable by a maximum of six months in jail and a fine of up to $1,000.
What is considered drug paraphernalia?
Drug paraphernalia is defined by California Health and Safety Code 11364 in part as “any device,
contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance.” This definition includes:
- Syringes (hypodermic needles)
- Miniature spoons commonly used for cocaine
However, 11365 HS specifically excludes paraphernalia associated with marijuana use, which is generally legal to possess. But such paraphernalia is subject to forfeiture under 11471 HS, and law enforcement officers may seize marijuana paraphernalia in the course of a lawful search or arrest.
Elements of the crime
To be convicted under 11365 HS, the prosecution must prove the defendant had control of (or the right to control) the paraphernalia, was aware of the presence of the paraphernalia, and knew that the item(s) in question were in fact, drug paraphernalia.
Defending against a charge of drug paraphernalia possession
One of the most common legal defenses against a charge of drug paraphernalia possession is the classic “it’s not mine” strategy. This defense frequently comes into play when paraphernalia is discovered in a vehicle or residence by police conducting a legal search, and that vehicle or residence is utilized or occupied by several individuals. In these situations, it can often be successfully argued that the accused was not in direct possession of the item and did not have the right to control it, because it actually belonged to someone else. If the judge or jury finds the argument credible, the defendant should be acquitted of the charge.
However, this defense is not an option if the defendant has already admitted to possession of the paraphernalia. This is why police officers will attempt to convince someone at the scene of the arrest to admit the paraphernalia is theirs. Law enforcement officers are permitted to — and are extensively trained in — a wide range of techniques designed to confuse, pressure, and manipulate suspects into making a confession. When faced with questioning and potential arrest, it’s best to exercise your right to remain silent, avoid making any incriminating statements, and wait until your attorney is present before answering any questions.