BILL NUMBER: AB 1811 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 9, 2010
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 11, 2010
An act to amend Sections 11014.5, 11364.5, 11364.7, and
11532 of the Health and Safety Code, relating to controlled
substances.
LEGISLATIVE COUNSEL'S DIGEST
AB 1811, as amended, Ammiano. Drug paraphernalia.
Existing law makes it a crime to possess, deliver, furnish, or
transfer drug paraphernalia, as specified, or to loiter in any public
place with the intent to engage in drug-related activity, which
intent may be shown by the possession of drug paraphernalia, and
requires a business that keeps, displays, or offers drug
paraphernalia to meet specified requirements with respect to minors
and drug paraphernalia or be subject to the revocation, nonrenewal,
or denial of a local business license, as specified. "Drug
paraphernalia" is defined for purposes of these provisions to include
objects designed or marketed for use in various sets
activities relating to the production, sale, and
consumption of specified controlled substances, including the
ingesting, inhaling, or otherwise introducing of
those controlled substances into the human body. Existing law
also lists specified items which are included in the definition of
"drug paraphernalia."
This bill would revise the definition of "drug paraphernalia" to
refer to those same objects when designed or marketed for use in the
unlawful conduct of those acts, including the unlawful ingesting,
inhaling, or other introduction of those controlled substances into
the human body. This bill would delete the lists of specified
items included in the definition of "drug paraphernalia" and make
conforming changes to related provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11014.5 of the Health and Safety Code is
amended to read:
11014.5. (a) "Drug paraphernalia" means all equipment, products,
and materials of any kind which are designed for use or marketed for
use, in planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing, processing,
preparing, testing, analyzing, packaging, repackaging, storing,
containing, concealing, injecting, ingesting, inhaling, or otherwise
introducing into the human body a controlled substance in violation
of this division. It includes, but is not limited to:
(1) Kits designed for use or marketed for use in planting,
propagating, cultivating, growing, or harvesting of any species of
plant which is a controlled substance or from which a controlled
substance can be derived.
(2) Kits designed for use or marketed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.
(3) Isomerization devices designed for use or marketed for use in
increasing the potency of any species of plant which is a controlled
substance.
(4) Testing equipment designed for use or marketed for use in
identifying, or in analyzing the strength, effectiveness, or purity
of controlled substances.
(5) Scales and balances designed for use or marketed for use in
weighing or measuring controlled substances.
(6) Containers and other objects designed for use or marketed for
use in storing or concealing controlled substances.
(7) Hypodermic syringes, needles, and other objects designed for
use or marketed for use in parenterally injecting controlled
substances into the human body.
(8) Objects designed for use or marketed for use in the unlawful
ingesting, inhaling, or otherwise introducing of marijuana, cocaine,
hashish, or hashish oil into the human body, such as:
(A) Carburetion tubes and devices.
(B) Smoking and carburetion masks.
(C) Roach clips, meaning objects used to hold burning material,
such as a marijuana cigarette, that has become too small or too short
to be held in the hand.
(D) Miniature cocaine spoons, and cocaine vials.
(E) Chamber pipes.
(F) Carburetor pipes.
(G) Electric pipes.
(H) Air-driven pipes.
(I) Chillums.
(J) Bongs.
(K) Ice pipes or chillers.
(b) For the purposes of this section, the phrase "marketed for use"
means advertising, distributing, offering for sale, displaying for
sale, or selling in a manner which promotes the use of equipment,
products, or materials with controlled substances for unlawful
purposes.
(c) In determining whether an object is drug paraphernalia, a
court or other authority may consider, in addition to all other
logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object
concerning its use.
(2) Instructions, oral or written, provided with the object
concerning its use for ingesting, inhaling, or otherwise introducing
a controlled substance into the human body.
(3) Descriptive materials accompanying the object which explain or
depict its use.
(4) National and local advertising concerning its use.
(5) The manner in which the object is displayed for sale.
(6) Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.
(7) Expert testimony concerning its use.
(d) If any provision of this section or the application thereof to
any person or circumstance is held invalid, it is the intent of the
Legislature that the invalidity shall not affect other provisions or
applications of the section which can be given effect without the
invalid provision or application and to this end the provisions of
this section are severable.
SEC. 2. Section 11364.5 of the Health and Safety Code is amended
to read:
11364.5. (a) Except as authorized by law, no person shall
maintain or operate any place of business in which drug paraphernalia
is kept, displayed or offered in any manner, sold, furnished,
transferred or given away unless such drug paraphernalia is
completely and wholly kept, displayed or offered within a separate
room or enclosure to which persons under the age of 18 years not
accompanied by a parent or legal guardian are excluded. Each entrance
to such a room or enclosure shall be signposted in reasonably
visible and legible words to the effect that drug paraphernalia is
kept, displayed or offered in such room or enclosure and that minors,
unless accompanied by a parent or legal guardian, are excluded.
(b) Except as authorized by law, no owner, manager, proprietor or
other person in charge of any room or enclosure, within any place of
business, in which drug paraphernalia is kept, displayed or offered
in any manner, sold, furnished, transferred or given away shall
permit or allow any person under the age of 18 years to enter, be in,
remain in or visit such room or enclosure unless such minor person
is accompanied by one of his or her parents or by his or her legal
guardian.
(c) Unless authorized by law, no person under the age of 18 years
shall enter, be in, remain in or visit any room or enclosure in any
place of business in which drug paraphernalia is kept, displayed or
offered in any manner, sold, furnished, transferred or given away
unless accompanied by one of his or her parents or by his or her
legal guardian.
(d) As used in this section, "drug paraphernalia" means all
equipment, products, and materials of any kind which are intended for
use or designed for use in the unlawful planting, propagating,
cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, or concealing of, or in
the unlawful injecting, ingesting, inhaling, or other unlawful
introduction into the human body of, a controlled substance.
"Drug paraphernalia" includes, but is not limited to, all of the
following:
(1) Kits intended for use or designed for use in planting,
propagating, cultivating, growing or harvesting of any species of
plant which is a controlled substance or from which a controlled
substance can be derived.
(2) Kits intended for use or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing
controlled substances.
(3) Isomerization devices intended for use or designed for use in
increasing the potency of any species of plant which is a controlled
substance.
(4) Testing equipment intended for use or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of
controlled substances.
(5) Scales and balances intended for use or designed for use in
weighing or measuring controlled substances.
(6) Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose, intended for use or
designed for use in cutting controlled substances.
(7) Separation gins and sifters intended for use or designed for
use in removing twigs and seeds from, or in otherwise cleaning or
refining, marijuana.
(8) Blenders, bowls, containers, spoons, and mixing devices
intended for use or designed for use in compounding controlled
substances.
(9) Capsules, balloons, envelopes, and other containers intended
for use or designed for use in packaging small quantities of
controlled substances.
(10) Containers and other objects intended for use or designed for
use in storing or concealing controlled substances.
(11) Hypodermic syringes, needles, and other objects intended for
use or designed for use in parenterally injecting controlled
substances into the human body.
(12) Objects intended for use or designed for use in the unlawful
ingesting, inhaling, or otherwise introducing of marijuana, cocaine,
hashish, or hashish oil into the human body, such as the following:
(A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic
pipes with or without screens, permanent screens, hashish heads, or
punctured metal bowls.
(B) Water pipes.
(C) Carburetion tubes and devices.
(D) Smoking and carburetion masks.
(E) Roach clips, meaning objects used to hold burning material,
such as a marijuana cigarette that has become too small or too short
to be held in the hand.
(F) Miniature cocaine spoons, and cocaine vials.
(G) Chamber pipes.
(H) Carburetor pipes.
(I) Electric pipes.
(J) Air-driven pipes.
(K) Chillums.
(L) Bongs.
(M) Ice pipes or chillers.
(e) In determining whether an object is drug paraphernalia, a
court or other authority may consider, in addition to all other
logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object
concerning its use.
(2) Prior convictions, if any, of an owner, or of anyone in
control of the object, under any state or federal law relating to any
controlled substance.
(3) Direct or circumstantial evidence of the intent of an owner,
or of anyone in control of the object, to deliver it to persons whom
he or she knows, or should reasonably know, intend to use the object
to facilitate a violation of this section. The innocence of an owner,
or of anyone in control of the object, as to a direct violation of
this section shall not prevent a finding that the object is intended
for use, or designed for use, as drug paraphernalia.
(4) Instructions, oral or written, provided with the object
concerning its use.
(5) Descriptive materials, accompanying the object which explain
or depict its use.
(6) National and local advertising concerning its use.
(7) The manner in which the object is displayed for sale.
(8) Whether the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the community, such
as a licensed distributor or dealer of tobacco products.
(9) The existence and scope of legitimate uses for the object in
the community.
(10) Expert testimony concerning its use.
(f) This section shall not apply to any of the following:
(1) Any pharmacist or other authorized person who sells or
furnishes drug paraphernalia described in paragraph (11) of
subdivision (d) hypodermic needles upon the
prescription of a physician, dentist, podiatrist or veterinarian.
(2) Any physician, dentist, podiatrist or veterinarian who
furnishes or prescribes drug paraphernalia described in
paragraph (11) of subdivision (d) hypodermic needles
to his or her patients.
(3) Any manufacturer, wholesaler or retailer licensed by the
California State Board of Pharmacy to sell or transfer drug
paraphernalia described in paragraph (11) of subdivision (d).
hypodermic needles.
(4) For the purposes of this section, "hypodermic needles" means
hypodermic syringes, needles, or other objects designed for use or
marketed for use in parenterally injecting controlled substances into
the human body.
(g) Notwithstanding any other provision of law, including Section
11374, violation of this section shall not constitute a criminal
offense, but operation of a business in violation of the provisions
of this section shall be grounds for revocation or nonrenewal of any
license, permit, or other entitlement previously issued by a city,
county, or city and county for the privilege of engaging in such
business and shall be grounds for denial of any future license,
permit, or other entitlement authorizing the conduct of such business
or any other business, if the business includes the sale of drug
paraphernalia.
SEC. 3. Section 11364.7 of the Health
and Safety Code is amended to read:
11364.7. (a) Except as authorized by law, any person who
delivers, furnishes, or transfers, possesses with intent to deliver,
furnish, or transfer, or manufactures with the intent to deliver,
furnish, or transfer, drug paraphernalia, knowing, or under
circumstances where one reasonably should know, that it will be used
to plant, propagate, cultivate, grow, harvest, compound, convert,
produce, process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale, or otherwise introduce into
the human body a controlled substance, except as provided in
subdivision (b), in violation of this division, is guilty of a
misdemeanor.
No public entity, its agents, or employees shall be subject to
criminal prosecution for distribution of hypodermic needles or
syringes to participants in clean needle and syringe exchange
projects authorized by the public entity pursuant to Chapter 18
(commencing with Section 121349) of Part 4 of Division 105.
(b) Except as authorized by law, any person who manufactures with
intent to deliver, furnish, or transfer drug paraphernalia knowing,
or under circumstances where one reasonably should know, that it will
be used to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body cocaine, cocaine base, heroin,
phencyclidine, or methamphetamine in violation of this division shall
be punished by imprisonment in a county jail for not more than one
year, or in the state prison.
(c) Except as authorized by law, any person, 18 years of age or
over, who violates subdivision (a) by delivering, furnishing, or
transferring drug paraphernalia to a person under 18 years of age who
is at least three years his or her junior, or who, upon the grounds
of a public or private elementary, vocational, junior high, or high
school, possesses a hypodermic needle , as defined in
paragraph (7) of subdivision (a) of Section 11014.5, with
the intent to deliver, furnish, or transfer the hypodermic needle,
knowing, or under circumstances where one reasonably should know,
that it will be used by a person under 18 years of age to inject into
the human body a controlled substance, is guilty of a misdemeanor
and shall be punished by imprisonment in a county jail for not more
than one year, by a fine of not more than one thousand dollars
($1,000), or by both that imprisonment and fine.
(d) The violation, or the causing or the permitting of a
violation, of subdivision (a), (b), or (c) by a holder of a business
or liquor license issued by a city, county, or city and county, or by
the State of California, and in the course of the licensee's
business shall be grounds for the revocation of that license.
(e) All drug paraphernalia defined in Section 11014.5 is subject
to forfeiture and may be seized by any peace officer pursuant to
Section 11471.
(f) If any provision of this section or the application thereof to
any person or circumstance is held invalid, it is the intent of the
Legislature that the invalidity shall not affect other provisions or
applications of this section which can be given effect without the
invalid provision or application and to this end the provisions of
this section are severable.
(g) For purposes of this section, "hypodermic needle" means a
hypodermic syringe, needle, or other object designed for use or
marketed for use in parenterally injecting controlled substances into
the human body.
SEC. 3. SEC. 4. Section 11532 of the
Health and Safety Code is amended to read:
11532. (a) It is unlawful for any person to loiter in any public
place in a manner and under circumstances manifesting the purpose and
with the intent to commit an offense specified in Chapter 6
(commencing with Section 11350) and Chapter 6.5 (commencing with
Section 11400).
(b) Among circumstances that may be considered in determining
whether a person has the requisite intent to engage in drug-related
activity are that the person:
(1) Acts as a "look-out."
(2) Transfers small objects or packages for currency in a furtive
fashion.
(3) Tries to conceal himself or herself or any object that
reasonably could be involved in an unlawful drug-related activity.
(4) Uses signals or language indicative of summoning purchasers of
illegal drugs.
(5) Repeatedly beckons to, stops, attempts to stop, or engages in
conversations with passersby, whether on foot or in a motor vehicle,
indicative of summoning purchasers of illegal drugs.
(6) Repeatedly passes to or receives from passersby, whether on
foot or in a motor vehicle, money or small objects.
(7) Is under the influence of a controlled substance or possesses
narcotic or drug paraphernalia. For the purposes of this paragraph,
"narcotic or drug paraphernalia" means any device, contrivance,
instrument, or apparatus designed or marketed for the use of
unlawfully smoking, injecting, ingesting, or consuming marijuana,
hashish, PCP, or any controlled substance, including, but not limited
to, roach clips, cigarette papers, and rollers designed or marketed
for use in smoking the unlawful smoking of
a controlled substance.
(8) Has been convicted in any court within this state, within five
years prior to the arrest under this chapter, of any violation
involving the use, possession, or sale of any of the substances
referred to in Chapter 6 (commencing with Section 11350) or Chapter
6.5 (commencing with Section 11400), or has been convicted of any
violation of those provisions or substantially similar laws of any
political subdivision of this state or of any other state.
(9) Is currently subject to any order prohibiting his or her
presence in any high drug activity geographic area.
(10) Has engaged, within six months prior to the date of arrest
under this section, in any behavior described in this subdivision,
with the exception of paragraph (8), or in any other behavior
indicative of illegal drug-related activity.
(c) The list of circumstances set forth in subdivision (b) is not
exclusive. The circumstances set forth in subdivision (b) should be
considered particularly salient if they occur in an area that is
known for unlawful drug use and trafficking, or if they occur on or
in premises that have been reported to law enforcement as a place
suspected of unlawful drug activity. Any other relevant circumstances
may be considered in determining whether a person has the requisite
intent. Moreover, no one circumstance or combination of circumstances
is in itself determinative of intent. Intent must be determined
based on an evaluation of the particular circumstances of each case.