HS 11364 prohibits the possession of drug paraphernalia in California. It is the most commonly-charged misdemeanor offense in Orange County.
The law specifically says that it is unlawful to possess an opium pipe or any "device, contrivance, instrument or paraphernalia" used to unlawfully smoke or ingest a number of controlled substances that are listed individually in other parts of the California Health & Safety Code. That includes straws, spoons, pipes, foil, and any virtually anything else that is used to consume meth, cocaine or heroin. It does not include pipes, bongs or papers used to smoke marijuana.
Starting this year, the law includes an exception for syringes and hypodermic needles that are used solely for personal use. The exception will remain in effect until January 1, 2026. This temporary carve-out was intended to help slow the spread of blood-borne diseases like HIV that are transmitted by sharing needles.
To be convicted of violating HS 11364, the DA must prove that:
- The defendant possessed the item
- The defendant knew (or should have known) that he possessed the item
- The defendant knew that the item was drug paraphernalia
- The defendant intended to use the item to ingest illegal drugs
There are many possible defenses to HS 11364 charges. Even though the law sounds pretty simple on its face, each element of the offense can be tricky for prosecutors to prove, depending on the circumstances.
The most obvious and common defense to any possession charge is police misconduct (i.e. an improper search). If the police violate a defendant's privacy without probable cause, consent or a valid warrant, then anything that they discover may be suppressed in court.
Prosecutors also need to prove that the item in question is actually contraband. Many common, household items that are used to ingest drugs also have valid, innocent uses. Of course, a straw can used to snort meth or cocaine, but it also be used to drink a soda. It's not illegal to possess a straw unless the totality of the circumstances establish beyond a reasonable doubt that the defendant intended to use the innocuous object for some illegal purpose. Even drug users can legally use straws to drink soda, so context is always important.
Even if the item is clearly drug paraphernalia, prosecutors must prove that the defendant knew what it was and that he knew he was in possession of it. If a crack pipe is found under the seat of a car, it may be difficult or impossible to prove that the driver was aware of it.
HS 11364 is a misdemeanor. A conviction can carry up to 364 days in county jail. Luckily, a qualified, local criminal defense attorney can usually negotiate some alternative to actual custody, depending on the defendant's criminal history and the specifics of the offense.
Orange County courts offer a variety of "diversion" or "deferred entry of judgement" (DEJ) programs. In addition to the old PC 1000 and Prop. 36 options, the OC District Attorney's Office is pretty flexible with tailoring DEJ programs for individual defendants. Under any diversion deal, a defendant is ordered to complete various terms and to remain law-abiding for some agreed-upon period of time. Once the defendant completes his end of the deal, the case is dismissed like it never happened.
Terms of DEJ can include providing a DNA sample for the state's database, attending some form of drug counseling or treatment, performing community service or labor, taking mandatory classes at Santa Ana Community College, paying a fine or making a "donation" to a victims' charity, or some combination of these things. The period of time that the defendant must wait and remain law-abiding before earning the dismissal can also range from 3 months to 18 months. These terms are negotiable.
In some cases, the DA may insist that the defendant plead "guilty" before entering the DEJ program. The plea is held in the court file, but it is not entered into the record and the defendant is not sentenced. Instead, sentencing is postponed until some future date. If the defendant complies with all terms of DEJ, then the case is dismissed at the time of sentencing.
In California, a defendant is not considered to be "convicted" of a crime until he is sentenced. Since defendants who successfully complete DEJ are never sentenced, they are not considered to be "convicted" of any crime under California law. Note: entering a "guilty" plea may have immigration consequences, even if a defendant is never actually "convicted" in the eyes of the California court. If you are not a US citizen, make sure that your attorney is aware of that fact before he or she starts the process of hammering out the terms of a DEJ deal.
If you or a loved one has been arrested or cited for possession of drug paraphernalia, call our office for a free attorney consultation. (714) 449-3335. Ask for John.
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