Health & Safety Code §11364

Commentary

Possession of paraphernalia is the knowing possession of an item that is primarily used to ingest a controlled substance.

Standard Punishment

One year

Relevant Statutes

Health & Safety Code §11364

(a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e) or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance that is a narcotic drug classified in Schedule III, IV, or V.
(b) This section shall not apply to hypodermic needles or syringes that have been containerized for safe disposal in a container that meets state and federal standards for disposal of sharps waste.
(c) Until January 1, 2021, as a public health measure intended to prevent the transmission of HIV, viral hepatitis, and other bloodborne diseases among persons who use syringes and hypodermic needles, and to prevent subsequent infection of sexual partners, newborn children, or other persons, this section shall not apply to the possession solely for personal use of hypodermic needles or syringes if acquired from a physician, pharmacist, hypodermic needle and syringe exchange program, or any other source that is authorized by law to provide sterile syringes or hypodermic needles without a prescription.

Standard Jury Instruction

The jury will generally be instructed pursuant to CalCrim 2410, which is summarized as follows

The defendant is charged with possessing an object that can be used to unlawfully inject or smoke a controlled substance in violation of Health and Safety Code section 11364.

To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant unlawfully possessed an object used for unlawfully injecting or smoking a controlled substance;
2. The defendant knew of the object’s presence;
AND
3. The defendant knew it to be an object used for unlawfully injecting or smoking a controlled substance.

Two or more people may possess something at the same time.

A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.

The People allege that the defendant possessed the following items: a glass methamphetamine smoking pipe and a heroin syringe.

You may not find the defendant guilty unless you all agree that the People have proved that the defendant possessed at least one of these items and you all agree on which item he possessed.

The defendant did not unlawfully possess a syringe if he was legally authorized to possess it.

The defendant was legally authorized to possess it if:
1. He possessed the syringe for personal use;
AND
2. He obtained it from a licensed physician.

The People have the burden of proving beyond a reasonable doubt that the defendant was not legally authorized to possess the hypodermic syringe. If the People have not met this burden, you must find the defendant not guilty of this crime.

Special Jury Instructions

The following case law may be of benefit in preparing special jury instructions to defend against a DUI charge.

“[A]n item is ‘intended to be used for unlawfully injecting or consuming controlled substances’ if the defendant (1) actually intends it to be so used, or (2) should know, based on the item’s objective features, that it is intended to be so used.”
Authority: Quoted language is from People v. Gutierrez, 52 Cal. App. 4th 380, 387 (1997).

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