Safe Havens

(D)  Possession of Drug Paraphernalia.  The Ninth Circuit has held that a conviction of possession of drug paraphernalia, under an Arizona statute that provided multiple tests to ensure that an actual controlled substance was involved, constituted a conviction of an offense relating to a controlled substance. [1102]  Counsel, whose client has a conviction of possession of paraphernalia, may distinguish Luu-Le, if the statute of conviction is different[1103] from the Arizona statute in failing to ensure that the paraphernalia is in fact related to a controlled substance.  Luu-Le held an Arizona possession of drug paraphernalia conviction constituted a conviction related to controlled substances.  The Arizona offense in that case was structured to eliminate innocent uses of paraphernalia: Arizona has 14 tests to assure that convictions for violation of this statute are in fact drug-related.  By contrast, other paraphernalia possession statutes have no such tests.[1104]  California law-makers have considered the use of evidentiary tests for the use of paraphernalia, and have put them only in the law prohibiting stores from selling paraphernalia.[1105]  It is inappropriate for statutes such as the California paraphernalia law, lacking Arizona’s evidentiary protections, to be considered convictions relating to controlled substances.  The same argument may be made with respect to statutes prohibiting possession of a hypodermic needle.[1106]

[1102] Luu-Le v. INS, 224 F.3d 911 (9th Cir 2000).

[1103] E.g., California Health & Safety Code § 11364.

[1104] E.g., California Health & Safety Code § 11364.

[1105] Compare the 10-point test under the sale of paraphernalia statute for determining the purpose of the sale, California Health and Safety Code § 11364.5, with the absence of such tests in the possession section.

[1106] E.g., California Business & Prof. Code § 4149.