Possession of Drug Paraphernalia FAQs
California Possession of Drug Paraphernalia Frequently Asked Questions
Can I be charged with possession of drug paraphernalia even if the items in question are household items that I purchased legally?
I did not know that the item in my possession is considered to be drug paraphernalia. Can I still be criminally charged?
What can be done if I’ve been charged with possession of drug paraphernalia but I have authorization for personal use of such items?
Are there any alternative punishments to a possession of drug paraphernalia conviction?
Can I be charged with possession of drug paraphernalia even if the items in question are household items that I purchased legally?
Yes. You can be charged with possessing drug paraphernalia even if the items in question are household items that were purchased legally. Drug paraphernalia can be any item, including everyday household items. However, the prosecution will have the burden to prove beyond a reasonable doubt that the household item was used for an unlawful injection or smoking of a controlled substance.
I did not know that the item in my possession is considered to be drug paraphernalia. Can I still be criminally charged?
Yes. You can still be charged with possession drug paraphernalia; even if you did not know that the item in your possession was considered drug paraphernalia under the law. However, to obtain a conviction, the prosecution must prove that the defendant actually knew that the item could be used to unlawfully inject or consume a controlled substance. At trial, the jury will ultimately decide on whether you actually knew that the item in your possession could have been used for drug paraphernalia. This is why it is critical that you talk to a criminal defense attorney with experience on drug crimes.
What can be done if I’ve been charged with possession of drug paraphernalia but I have authorization for personal use of such items?
Having authorization for personal use is an affirmative defense to the charge of drug paraphernalia. This is usually the case when someone is caught with hypodermic needles or syringes. The law allows for a person to be able to possess hypodermic needles or syringes, as long as they were for personal use, the person obtained it from an authorized source, and the person possessed no more than 10 needles.
The defendant only needs to raise a reasonable doubt about whether his or her possession of the items was lawful. It will be the prosecution’s burden to prove beyond a reasonable doubt that the defendant possessed the needles unlawfully. If the prosecution does not meet this burden, the defendant must be found not guilty.
Are there any alternative punishments to a possession of drug paraphernalia conviction?
Under California Health and Safety Code 11350, the court has the power to place you on probation. If you are placed on probation, the court may impose from one day to one year in the county jail as a condition of probation.
You may also have a probation officer, in whom you will have to meet on a regular basis. If you are placed on felony probation for this offense, this means you likely will have a probation officer. Random drug tests may also be administered.
Diversion programs may also be available. California Penal Code 1000 (“P.C. 1000”) and Proposition 36 (“Prop. 36”) are two diversion programs that allow defendants who are charged with simple drug possession offenses to enter into a drug treatment program, in lieu of jail time. Upon completion of the drug treatment program, the charges will be dismissed.
For more information on P.C. 1000 and Prop. 36, please visit www.wklaw.com and read our Diversion Programs section. You will find invaluable information on these diversion programs, including how to be eligible, and the pros and cons to these diversion programs.
