California Health and Safety Code § 11364: Possession of Drug Paraphernalia

Health and Safety Code § 11364 HS makes it a misdemeanor to possess any device, instrument, or paraphernalia used for unlawfully injecting, smoking, or consuming controlled substances (such as cocaine, heroin, or methamphetamine).

While often treated as a minor narcotics offense, a conviction can carry jail time, fines, and a lasting criminal record.

Quick Reference Summary: HS 11364

Statute	California Health and Safety Code § 11364 HS
Classification	Misdemeanor
Maximum Jail Time	Up to 6 months in county jail
Maximum Fine	Up to $1,000
Alternative Sentencing	Penal Code 1000, Prop 36, or PC 1001.95 Judicial Diversion (dismissal upon completion)
Core Elements to Prove	Control/possession, knowledge of presence, knowledge of item's nature as paraphernalia

Legal Definition and What Prosecutors Must Prove

To secure a conviction under HS 11364, California prosecutors must prove three distinct elements beyond a reasonable doubt:

Control or Possession: The defendant had actual possession (on their person) or constructive possession (the item was found in a location under their direct control, like a vehicle or home).
Knowledge of Presence: The defendant knew the object was there.
Knowledge of Use: The defendant knew the object was intended to be used for consuming or administering illegal controlled substances.

Note on Legal Exemptions: Under California law, possession of hypodermic needles or syringes is legal if obtained from an authorized source (such as a pharmacy or syringe exchange program) for personal use only.

Real-World Example

Scenario: Constructive Possession vs. Lack of Knowledge

During a routine traffic stop, law enforcement officers, with the driver's consent, search a vehicle and discover a glass pipe in the glove compartment that is often used for smoking methamphetamine.

If the driver owns the vehicle and knew the pipe was inside, they can be charged with HS 11364 under the theory of constructive possession.
If the driver borrowed the car from a friend and had no idea the object was in the glove box, the defense can argue lack of knowledge, which would defeat a core element of the charge.

Penalties and Drug Diversion Options

A conviction for violating HS 11364 is a misdemeanor and carries the following maximum penalties:

Up to 6 months in county jail.
A base fine of up to $1,000.
Informal (summary) probation.

Pretrial and Judicial Diversion Programs

First-time or non-violent offenders frequently qualify for alternative sentencing structures that avoid jail time and result in a dismissed charge:

Penal Code 1000 (PC 1000): Pretrial drug diversion allowing defendants to complete a drug education or treatment program. Upon successful completion, the criminal charges are dismissed.
Proposition 36: Court-ordered drug treatment as a condition of probation.
Judicial Diversion (PC 1001.95): Allows a judge to divert the case over the prosecution's objection, offering a clear path to dismissal upon meeting court conditions.

Legal Defenses to HS 11364 Charges

Experienced defense strategies against drug paraphernalia charges typically center on challenging the evidence or the legality of the police conduct:

Lack of Knowledge: Proving the defendant was unaware of the object's presence or did not realize the object was classified as drug paraphernalia.
Illegal Search and Seizure: If law enforcement discovered the paraphernalia during an unlawful vehicle stop, a warrantless search, or a search lacking probable cause, the evidence may be suppressed under Penal Code 1538.5.
Authorized Possession: Demonstrating that items like syringes were legally obtained from an authorized medical provider or public health program.
The Item is Not Paraphernalia: Showing the object has a purely lawful, everyday utility unrelated to controlled substances.

Related California Drug Statutes

Drug paraphernalia charges rarely occur in isolation. Prosecutors frequently file HS 11364 alongside related offenses:

HS 11350 – Possession of a Controlled Substance: Personal possession of illegal narcotics (e.g., cocaine or heroin).
HS 11377 – Possession of Methamphetamine: Specifically targets the personal possession of methamphetamine.
HS 11351 – Possession for Sale: A felony charge applied if scales, baggies, or large quantities suggest intent to sell rather than personal use.
HS 11365 – Presence During Illegal Drug Use: Making it a misdemeanor to knowingly be present where drugs are used if you assist or encourage the activity.
HS 11550 – Under the Influence of a Controlled Substance: A separate misdemeanor charge for being actively impaired by an illegal drug.
PC 4573 – Bringing Drugs into a Correctional Facility: A severe felony enhancement triggered if paraphernalia is brought into a jail or prison.

Frequently Asked Questions (FAQs)

Is possession of a glass pipe automatically illegal in California?

No. Possessing a pipe is illegal under HS 11364 only if the prosecution proves it was intended for smoking or consuming an illegal controlled substance. If the item has never been used or is intended for legal substances, it does not meet the legal definition of drug paraphernalia.

Can an HS 11364 charge be expunged from my record?

Yes. If you are convicted of this misdemeanor but successfully complete your probation or diversion program, you can petition the court for expungement under Penal Code 1203.4, which releases you from most penalties and disabilities arising from the conviction.

What counts as "constructive possession"?

Constructive possession means the item was not found directly on your person (such as in your pocket) but rather in a place over which you exercise control—such as your bedroom, your backpack, or the center console of your car.4. Do medical syringes count as illegal paraphernalia?

Do medical syringes count as illegal paraphernalia?

California public health laws permit individuals to possess hypodermic needles and syringes for personal use, provided they were acquired from a pharmacy, doctor, or an authorized syringe exchange program, to help prevent the spread of bloodborne diseases.

Will a conviction under HS 11364 affect immigration status?

It is possible. Although a minor paraphernalia charge is a misdemeanor, any drug-related conviction can lead to negative immigration consequences for non-U.S. citizens, such as problems with visa renewals or adjusting their status. Getting specialized legal advice is essential.

Speak With a California Drug Crime Defense Attorney

Although a violation of HS 11364 is a misdemeanor, a conviction can still result in a permanent criminal record that affects your employment opportunities, professional licensing, and immigration status.

Navigating the legal system alone can be daunting, but you don't have to confront these charges without help.

If you or a loved one is facing a drug paraphernalia charge, securing early intervention from an experienced defense attorney is your best opportunity to protect your future.

A skilled lawyer can evaluate the legality of your arrest, challenge the evidence, and fight to secure a dismissal or entry into an alternative diversion program such as PC 1000.

Need Legal Help? Contact the Esfandi Law Group today at (310) 274-6529 to schedule a completely free, confidential consultation to review your case and explore your legal options.

Drug Paraphernalia