Possessing Drug Paraphernalia

What is the definition of possessing drug paraphernalia under Health and Safety Code 11364 HS?

It is unlawful to possess paraphernalia for any substances as described under Statute towards categories listed under Schedule I, Schedule II, Schedule III, Schedule IV, and Schedule V drugs.

What is the definition of drug paraphernalia under Health and Safety Code 11364 HS?

Drug paraphernalia is any equipment, products, materials and its derivatives designed for the use, marketing, manufacture, sale, compounding, producing, pounding, testing, injecting, inhaling, storing, ingesting, or growing any controlled substance listed as a Category I, Category II, Category III.

Examples include, zip lock bags, rolling papers, containers, carrying cases, straws, razors, carbs, stirrers, grinders, shifters, triple beam scales, pens, spoons, digital weight machines, pipes, C02 dispensers and compression machines which contain the residual proof of drugs and their compounds as specified under Health and Safety Code 11364.

What kinds of drugs are listed under Health and Safety Code 11364 HS?

In terms of the references to drugs, Health and Safety Code 11364 HS examples include:

(1) Opium; (2) MDMA; (3) Mushrooms; (4) Psilocybin; (5) Fentanyl; (6) Peyote; (7) Meth; (8) Mescaline; (10) GHB; (11) Opium extracts such as CO2 base and derivatives like crumbles and dabs; (12) PCP; (13) Ketamine; (14) Testosterone; (15) Cocaine; and (17) and Heroin.

What is the mental state required under Health and Safety Code 11364 HS?

It is implied that the mental state required is knowingly. Knowingly is a conscious understanding of the environment, the nature of the act, and the surrounding effects and consequences of the steps utilized to achieve the result.vi Therefore, a person must be aware of use of the listed paraphernalia under Health and Safety Code 11364, their purpose for to achieve an effect from one of the listed categories of substances listed under Health and Safety Code 11364 HS, and the nature of the category of the substances listed itself if anything by name and or its cultish affiliation; and understand the natural consequences which derive from the use of those substances with the selected paraphernalia.

Are there any exceptions of paraphernalia under Health and Safety Code 11364 HS?

The general listed exceptions are hypodermic needles. Because of the need to preserve the health, safety, and welfare of AIDS, cancer patients and those afflicted with hypoglycemia. This is an initiative to permit those afflicted with these ailments to have the freedom of choice to administer their medication without intervention.

Sentencing for Health and Safety Code 11364 

What are the penalties for a violation under Health and Safety Code 11364 HS?

A violation of Health and Safety Code 11364 HS is charged as a misdemeanor. Violations include confinement not exceeding 6 months in jail. With fines not exceeding $1000 dollars.

What is an example of a violation of Health and Safety Code 11364 HS?

• Sarah needed to cool off from a hard workday. It was a Friday. Her friend Carl asked to use her car. Sarah said no but was more than willing to take him to his destination. In the car Carl opened a pouch that contained a straw and started snorting cocaine; then placed the remainder in a bowl and smoked it. Although she has never tried drugs before, she told Carl to “roll down the window”, he complied. Before they reached Carl’s destination; they were pulled over for speeding. While the officer was about to give Sarah a warning, he observed Carl’s erratic behavior as he was passing in and out of consciousness. The officer asked them to step out of the car for a search of the vehicle. The officer found the straw, pipe, cocaine residue, and powder still present in the pipe and straw lying in Carl’s lap and fell out as he stepped out of the vehicle. Since it was Sarah’s car she was arrested with Carl.

Defending Health and Safety Code 11364 

What are examples of defenses of violations to Health and Safety Code 11364 HS?

1. Mistake of Fact – The accused party did in fact intend to use the paraphernalia for illegal drugs, but the substance in the person’s presence was not an illegal substance as listed in Category I, II, III.
2. Duress
3. Mistake in Law – The paraphernalia in question was a hypodermic needle with no trace of illegal substances in it, although there were illegal substances in the area.

Need a Lawyer? 

If you are charged with a violation of Health and Safety Code 11364 HS, call Law Mart.