Considering that actual drug possession can be a minor infraction in California, it would seem that possession of drug paraphernalia also would be considered minor under California law. However, if you’re charged with possession of drug paraphernalia, you can actually face stiffer penalties than if you’re cited for other controlled substances.
In California, possession of paraphernalia is a criminal misdemeanor punishable by possible jail time and fines, and a conviction results in your having a drug offense on your record that can affect your ability to get a job or rent an apartment, or potentially have negative effects on other parts of your life. If you’ve been charged with possession of paraphernalia, you should take that seriously and consult with a drug lawyer about your options and possible outcomes. A lawyer can help you make informed decisions about how best to proceed after you’ve been charged.
What is Paraphernalia?
Paraphernalia is a relatively broad term that can include pretty much anything you might use to inject, to smoke, or to otherwise use an illegal drug. Drug paraphernalia can include common household items when there is evidence that can link them to the use of controlled substances, such as a compact mirror or razor blade employed in the use of cocaine. Those objects aren’t inherently drug paraphernalia, but when they can be connected to cocaine use they may be considered paraphernalia and you may be charged with paraphernalia possession.
Some common items considered drug paraphernalia include:
- Hypodermic needles
- Rolling papers
- Roach clips
However, syringes and hypodermic needles are exempt from the paraphernalia possession statute when you possess them legally and receive them from an authorized source, such as having them prescribed by a doctor and buying them from a pharmacy so that you can inject a legal medication.
Paraphernalia that is used to manufacture or package drugs, such as scales, bags, capsules, or balloons, typically results in a felony possession with intent to sell charge rather than a possession of paraphernalia charge in California.
Penalties for a Possession of Drug Paraphernalia Conviction
Possession of drug paraphernalia is a misdemeanor in California. If you’re convicted, you face a possible jail sentence of up to six months in county jail. Additionally, you may be required to pay a fine of up to $1,000.
Additionally, a conviction will mean that you have a permanent criminal record. A drug conviction on your record can affect your ability to:
- Find a job when the conviction shows up in background checks
- Rent an apartment if your potential landlord checks your criminal history
- Hold a professional license, especially if it’s related to health care, pharmacy or teaching work
- Get approved for an immigration visa, green card, or citizenship if you’re not a U.S. citizen
Drug Diversion as an Alternative
Possession of drug paraphernalia is one of the offenses listed in California Penal Code §1000 that can be eligible for resolution through a drug diversion program. Under PC §1000, you may be eligible for diversion if:
- You lack previous drug convictions
- Your possession of paraphernalia charge does not involve violence or threatened violence
- Your case doesn’t involve evidence of another narcotics violation not eligible for diversion
- You haven’t had probation or parole revoked
- You haven’t already been through a diversion program within the last 5 years
- You haven’t been convicted of a felony within the last 5 years
If a court allows you to complete a drug diversion program, typically you must plead guilty to the offense but instead of sentencing you, the court gives you time to complete substance abuse treatment. Once you complete treatment and meet any other conditions of the court, the possession of paraphernalia charge is dismissed. The benefits of drug diversion are that if you have a substance abuse problem, you can get help and try to get your life back on track, but also that by completing treatment you avoid having a drug conviction on your record, and that can help you later if you apply for a job or if you want to get a college degree. An experienced San Diego drug lawyer can help negotiate for you to enroll into drug diversion as an alternative to criminal penalties like jail time.
Defending a Possession of Drug Paraphernalia Charge
Whether or not you were in possession of an illegal item isn’t always straightforward. In legal terms, possession takes two forms:
- Actual Possession — This is how most people think of possession, and involves physically having the item within your grasp or on your person. If you have a roach clip in your pocket, you are in actual possession.
- Constructive Possession — This is a more broad idea of possession, and includes the concept that an item is within your dominion and control even if it’s not in your physical possession. Constructive possession can include having paraphernalia in your home or your car, even if it’s not within your immediate reach, or having given it to another person to hold for you. The key part of constructive possession is that even if the item is elsewhere, it’s still yours and you have the ability to take physical possession.
Proving constructive possession relies on connecting the dots to form the picture of your ownership of the paraphernalia, but what if there are dots missing, or investigators connect the dots the wrong way? What if the paraphernalia was found in a common area of your home such as kitchen, but other people also live in the home? To convict you, it’s up to a prosecutor to prove beyond a reasonable doubt that you were in possession of the paraphernalia. When there are dots missing, or your defense lawyer can show that they can be connected to form a different picture, you may be able to fight the possession charge.
In order to convict you, a prosecutor not only has to prove that you possessed paraphernalia, but that the item actually was paraphernalia and that you knew it was paraphernalia. That means the prosecutor needs evidence to prove that the item was used to inject, smoke, or use drugs. Back in the ‘80s, it was a fad for some people to wear feathered roach clips in their hair. Just because something is commonly perceived as drug paraphernalia doesn’t mean that’s how you used it. If the prosecutor can’t prove beyond a reasonable doubt that the item was used to take drugs and that you knew it was drug paraphernalia, your defense lawyer may be able to fight the possession charge.
An experienced San Diego drug lawyer also knows that drug-related cases usually are based on searches and seizures — and that there often are problems with the ways searches and seizures are executed by law enforcement. If the evidence in your case was obtained through an illegal search or seizure that violated your constitutional rights, your lawyer can use that try to fight your charge.