2411. Possession of Hypodermic Needle or Syringe
The defendant is charged [in Count ______] with possessing [a] hypodermic (needle[s]/ [or] syringe[s]).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant [unlawfully] possessed [a] hypodermic (needle[s]/ [or] syringe[s]);
2. The defendant knew of its presence;
AND
3. The defendant knew that the object[s] (was/were) [a] hypodermic (needle[s]/ [or] syringe[s]).
[Two or more persons may possess something at the same time.]
[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]
<Defense: Authorized Possession for Personal Use>
[The defendant did not unlawfully possess [a] hypodermic (needle[s]/ [or] syringe[s]) if (he/she) was legally authorized to possess (it/them). The defendant was legally authorized to possess (it/them) if:
1. (he/she) possessed the (needle[s]/ [or] syringe[s]) for personal use;
[AND]
2. (he/she) obtained (it/them) from an authorized source(;/.)
[AND
3. (he/she) possessed no more than 10 (needles/ [or] syringes).]
The People have the burden of proving beyond a reasonable doubt that the defendant was not legally authorized to possess the hypodermic (needle[s]/ [or] syringe[s]). If the People have not met this burden, you must find the defendant not guilty of this crime.]
Bench Notes
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Defenses—Instructional Duty
Business and Professions Code section 4140 allows for the lawful possession of a hypodermic needle or hypodermic syringe when "acquired in accordance with this article." (People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045 [274 Cal.Rptr. 17] [authorized possession affirmative defense].) The defendant need only raise a reasonable doubt about whether his or her possession of these items was lawful. (See People v. Mower (2002) 28 Cal.4th 457, 479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) If there is sufficient evidence, the court has a sua sponte duty to instruct on the defense. (See ibid. at pp. 478-481 [discussing affirmative defenses generally and the burden of proof].) Give the bracketed word "unlawfully" in element 1 and the bracketed paragraph on that defense.
In 2004, the Legislature created the Disease Prevention Demonstration Project. (Health & Saf. Code, § 121285.) The purpose of this project is to evaluate "the long-term desirability of allowing licensed pharmacists to furnish or sell nonprescription hypodermic needles or syringes to prevent the spread of blood-borne pathogens, including HIV and hepatitis C." (Health & Saf. Code, § 121285(a).) In a city or county that has authorized participation in the project, a pharmacist may provide up to 10 hypodermic needles and syringes to an individual for personal use. (Bus. & Prof. Code, § 4145(a)(2).) If there is sufficient evidence that the defendant acquired the hypodermic needle or syringe in accordance with this project, the court has a sua sponte duty to instruct on the defense. Give the bracketed word "unlawfully" in element 1 and the bracketed paragraph on the defense of authorized possession.
Authority
Elements. Bus. & Prof. Code, § 4140.
Authorized Possession Defense. People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045 [274 Cal.Rptr. 17]; People v. Mower (2002) 28 Cal.4th 457, 478-481 [122 Cal.Rptr.2d 326, 49 P.3d 1067].
Disease Prevention Demonstration Project. Health & Saf. Code, § 121285; Bus. & Prof. Code, § 4145(a)(2).
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Public Peace and Welfare, § 381.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[2][a] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.02; Ch. 145, Narcotics and Alcohol Offenses, § 145.01[1][a], [b] (Matthew Bender).
(New January 2006)