§ 11364 HS – Possession of Drug Paraphernalia in California

California Health & Safety Code § 11364(a) HS makes it illegal to possess drug paraphernalia. This means any device or instrument used for unlawfully injecting, smoking or otherwise consuming a controlled substance.

Common examples of drug paraphernalia are:

• needles,
• cocaine spoons,
• razor blades,
• methamphetamine pipes, and
• tinfoil.

The full language of the code section reads:

HS 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, 2026, 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.

Consequences of a conviction

Illegal possession of drug paraphernalia in violation of Health & Safety Code 11364 HS is a misdemeanor.

Penalties for violating California’s possession of drug paraphernalia law can include

• six months in jail, and
• a fine of up to $1,000.

There are additional consequences of a conviction for people who hold professional licenses, such as:

• lawyers,
• teachers,
• contractors, or
• real estate agents.

Repercussions of a drug paraphernalia conviction for such professionals can include suspension of their professional license.

How do I defend myself against these charges?

Common defenses to criminal charges of HS 11364 drug paraphernalia possession include:

• What the police found wasn’t drug paraphernalia,
• The paraphernalia wasn’t yours,
• You didn’t know that the item was drug paraphernalia, and
• The police discovered the paraphernalia during an illegal search or seizure.

The following graphic shows common types of drug paraphernalia:

Below, our California criminal defense attorneys address the following:

• 1. When is drug paraphernalia illegal in California?
• 2. How can I fight an 11364 HS charge?
• 3. What are the penalties if I’m convicted?
  • 3.1. Am I eligible for drug diversion?
• 4. Related Offenses

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. When is drug paraphernalia illegal in California?

Health and Safety Code 11364 HS, California’s “possession of drug paraphernalia” law, prohibits possessing “an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance”.¹

There is one major exception to California’s law against possession drug paraphernalia. Until 2026, it is legal to possess hypodermic needles or syringes IF:

1. They are solely for your own personal use, and
2. You acquired them from a physician, pharmacist, needle or syringe exchange program, or any other source authorized by law to provide sterile syringes or needles without a prescription.

This exception is a public measure designed to prevent the transmission of HIV and other bloodborne diseases among those who use heroin and other injectable drugs.²

Example: Steve is a heroin user and regularly visits an authorized source for a needle exchange for free clean needles.

If Steve is caught with heroin in his possession, he could be charged with simple possession of a controlled substance under HS 11350. But if he is caught with needles he got from the exchange in his possession, he will NOT face charges for possession of drug paraphernalia.

To convict you of illegal possession of drug paraphernalia, the prosecutor must prove the following three facts (otherwise known as “elements” of the offense):

1. You exercised control over (or had constructive possession over) drug paraphernalia;
2. You knew of the paraphernalia’s presence; and
3. You knew it was drug paraphernalia.³

Let’s take a closer look at some of these terms to better understand the legal definition of possession of drug paraphernalia under Health & Safety Code 11364 HS.

Control

Under Health & Safety Code 11364 HS, “control” may be actual or constructive.

You actively control something when you physically carry it on your person. For example, you actively control a pipe for smoking crack cocaine when you carry it in your pocket.

You constructively control something when you either

1. exercise control over that item (for example, you constructively possess the pipe that you own and left on your bedroom dresser), or
2. have the right to exercise control over that item either individually or with another person (for example, you constructively possess the pipe that you and your wife share which is at home in the bathroom).⁴

Example: When Tina’s boyfriend moves in with her, he brings several crack pipes with him that she uses regularly as well.

If police search the apartment when Tina is not home, and find the crack pipes, she could be charged with possession of drug paraphernalia under HS 11364. This is because she had constructive joint control of the pipes.

Paraphernalia

The term “paraphernalia” under California’s possession of drug paraphernalia law refers to a variety of items that are used for illegally

• injecting,
• smoking, or
• otherwise consuming controlled substances or narcotic drugs.⁵

Under this section, examples of drug paraphernalia include (but are not limited to) pipes, and miniature cocaine spoons.⁶

Excluded from this list, at least until 2026, are hypodermic needles and syringes where both of the following are true:

1. They are solely for your personal use, and
2. You acquired them from a physician, pharmacist, needle or syringe exchange program, or any other source authorized by law to provide sterile syringes or needles without a prescription.⁷

Similarly, items that are more often associated with the manufacture and sale of drugs are not covered under HS 11364. That includes things like

• scales and balances used to measure and weigh drugs,
• blenders, bowls, spoons, and other mixing devices used to compound controlled substances, and
• capsules, balloons, and other containers used to conceal or package drugs,

This is because possession of items associated with drug manufacture or sale is usually punished under

•  Health and Safety Code 11351 HS California’s “drug possession for sale” law, or
•  Health and Safety Code 11352 HS California’s transporting or selling a controlled substance” law

rather than under HS 11364, California’s possession of drug paraphernalia law.

Controlled substances and narcotic drugs

Under Health and Safety Code 11364 HS, “controlled substances” or “narcotic drugs” are simply terms that describe a class of specific drugs and drug-like substances. In general, these include

• stimulants,
• depressants,
• hallucinogens, and
• opiates.

Some of the most commonly used controlled substances and narcotics within these categories include:

• methamphetamine,
• heroin,
• cocaine, and
• PCP.⁹

Marijuana is specifically excluded from California’s possession of drug paraphernalia law. Drug offenses involving marijuana paraphernalia are regulated separately under California’s marijuana laws.

Under Proposition 64, California’s marijuana legalization law, most personal use of recreational marijuana is no longer illegal.¹¹

People exempt from prosecution

Certain people areexempt from prosecution under HS 11364, California’s possession of paraphernalia law.  These include

• police officers or anyone working under their immediate direction or supervision, and
• pharmacists, doctors, dentists, podiatrists, veterinarians, as well as manufacturers, wholesalers, and retailers, who are licensed by the California State Board of Pharmacy and prescribe, sell, or transfer hypodermic syringes, needles, or other objects intended for use to inject drugs into the body.¹²

2. How can I fight an 11364 HS charge?

The good news is that there are a variety of legal defenses to Health and Safety Code 11364 HS possession of drug paraphernalia charges that a skilled California criminal defense lawyer can present on your behalf.  Below are examples of some of the most common.

You didn’t have control over the paraphernalia.

If you didn’t have control over the paraphernalia, then you shouldn’t be convicted of this drug offense.

Example: Police obtain a California search warrant to search Miguel’s apartment for evidence of his involvement in a recent theft crime. The police find a “crack pipe” in Miguel’s kitchen that belongs to Miguel’s roommate Charlie.

Even though the pipe is in Miguel’s home, he is not in actual possession of it. As a result, Miguel should be acquitted of a possession of paraphernalia charge.

The object wasn’t paraphernalia.

Just because the object looks like something that can be used to inject or consume illegal drugs doesn’t necessarily mean that it actually is.

Maybe it’s a tool you use to administer prescription drugs to your sick or injured animal. Maybe it’s a pipe that you use to smoke tobacco.

For you to be guilty of HS 11364 possession of drug paraphernalia, the prosecutor must prove that you possess drug paraphernalia. Other objects do not satisfy this criterion.

You didn’t know the object was paraphernalia.

Even if the police do find drug paraphernalia in your possession, if you didn’t know it was paraphernalia, you aren’t guilty of violating California’s drug paraphernalia possession law.

This defense against HS 11364 charges works best for those individuals who do not have a criminal history — especially a criminal drug history.

As Oakland criminal defense attorney Neil Shouse¹³ explains,

“In order to determine whether you know an object is “drug paraphernalia”, the court will consider any prior drug-related convictions, your statements concerning its use, expert testimony concerning the object’s use, and how the object was displayed for sale.”¹⁴

You didn’t know about the paraphernalia’s presence

Again, let’s say that the police do find you possessing paraphernalia. If you didn’t know you possessed it, you should be acquitted of HS 11364 possession of drug paraphernalia.

There is an infinite number of instances where this defense to possession of drug paraphernalia charges could be applicable:

• Someone borrowed your jacket and left a pipe in the pocket.
• Someone left his cocaine spoon in your car under the passenger seat.
• Someone placed a vial in your purse to avoid being caught himself.

The paraphernalia was discovered during an illegal search and seizure

Oftentimes, drug paraphernalia is discovered during the course of an illegal search and seizure.

Example: The police pull Karina over for speeding. Without any justifiable reason for doing so, they have her exit the car so that they can conduct a search and find a cocaine pipe under her seat.

Because the paraphernalia was discovered during an illegal search, Karina’s California criminal defense lawyer should prevail on a Penal Code 1538.5 PC motion to suppress evidence. This should lead to a dismissal of the charges.

3. What are the penalties if I’m convicted?

Possessing drug paraphernalia is a misdemeanor. The potential penalties are:

• up to six (6) months of county jail time, and
• a maximum $1,000 fine.¹⁵

In addition, a conviction for Health and Safety Code 11364 HS–or for that matter, even an arrest for this section–could lead to professional repercussions for those who hold professional licenses.

For example, teachers accused of violating this law may be placed on an immediate leave of absence pending the resolution of the charge(s).

The L.A. County D.A.’s office generally does not prosecute HS 11364 cases.¹⁶

3.1. Am I eligible for drug diversion?

Some people convicted of California’s possession of drug paraphernalia law will be eligible for alternative sentencing, known as a drug diversion program.

Drug rehabilitation is offered in place of jail to those who have committed non-violent drug possession and drug use offenses such as HS 11364.

This type of alternative sentence is available under

• California Proposition 36 and
• Penal Code 1000 PC California’s drug diversion or “deferred entry of judgment” program.¹⁷

When you participate in drug diversion, you enter a

• guilty plea or
• nolo contendere plea (more commonly referred to as “no contest”)

to the drug paraphernalia possession charges.

The judge orders you to complete drug rehabilitation as a condition of your probation. You will likely be subject to drug testing as a condition of your probation as well.

If you complete your probation and drug treatment successfully, the judge dismisses your drug paraphernalia possession charge. If you do not, the judge has the discretion to order you to serve a jail sentence.¹⁸

HOWEVER, if you are simultaneously convicted of California Health and Safety Code 11364 HS and

1. a separate misdemeanor offense that doesn’t involve simple possession or drug use (which includes driving under the influence of drugs),¹⁹ or
2. a felony,

you will be disqualified from participating in drug diversion.²⁰

4. Related Offenses

Health and Safety Code 11364 HS California’s “possession of drug paraphernalia” law is closely related to other California drug offenses.

Health and Safety Code 11364.5 HS

Health and Safety Code 11364.5 HS prohibits operating a business where drug paraphernalia is

• stored,
• displayed, or
• sold for use with

legal substances except when it is kept in a room inaccessible to minors (that is, persons under 18) who a parent does not accompany.

If guilty of this offense, the owner does not face criminal penalties but can lose their California business license or permit.  Additionally, any drug paraphernalia will be

• seized by and
• forfeited to

the state.²²

Health and Safety Code 11364.7 HS

Another California drug paraphernalia law, similar to HS 11364, is Health and Safety Code 11364.7 HS. This law prohibits people from

• possessing,
• furnishing,
• transporting, or
• manufacturing

drug paraphernalia when they know or reasonably should know that the paraphernalia will be used in connection with illegal drug use or sales.²³

This section additionally punishes adults who

1. furnish minors with paraphernalia, or
2. possess hypodermic needles on school grounds intending (or knowing) that a minor will use the needles to inject illegal drugs.²⁴

Depending on the exact violation, violations of HS 11364.7 (a more serious offense than paraphernalia possession under HS 11364) may be charged as either

• a misdemeanor (subjecting the accused to up to one year in a county jail and a maximum $1,000 fine), or
• a felony (punishable by 16 months, or two or three years in the California state prison and a maximum $10,000 fine).²⁵

Health and Safety Code 11365 HS

Health and Safety Code 11365 HS makes it a crime:

• to be present while someone else is using controlled substances and
• to aid and abet their controlled substance use.²⁶

This misdemeanor offense carries a potential jail sentence of up to six (6) months.²⁷

It may be charged along with Health and Safety Code 11364 HS possession of drug paraphernalia if, for example, you are found in possession of paraphernalia that is

• being used or
• about to be used by someone else.

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