Possession of Drug Paraphernalia

Facing charges for possession of drug paraphernalia? Learn how these cases may play out.

By , Attorney · University of Houston Law Center

Along with drug possession charges, possession of drug paraphernalia charges are one of the more commonly charged crimes in any jurisdiction. Almost anything can be considered drug paraphernalia, but items such as bongs, roach clips, glass pipes, or syringes are commonly associated with the crime.

This article examines the definition of drug paraphernalia, as well as penalties and possible defenses to charges.

Criminal Charges for Possession of Drug Paraphernalia

Most states have laws that criminalize the sale, use, and possession of drug paraphernalia, though the wording of these laws differs. Oftentimes, the criminal system broadly applies these laws, and a court can find that almost any item constitutes drug paraphernalia under the right circumstances. To prove a violation, though, the state must establish that the defendant possessed the drug paraphernalia with the intent to use it in connection with a controlled substance. Determining the issues of possession and intent can become complicated. Prosecutors look at several factors when deciding whether to charge an offender with a possession offense.

What Is Drug Paraphernalia?

First, the state must show the item is drug paraphernalia. Drug paraphernalia includes items used for smoking or injecting a narcotic or dangerous drug. Paraphernalia can also include devices used for manufacturing, growing, weighing, or packaging illegal drugs, such as scales or plastic baggies.

Many state laws specify what equipment qualifies as drug paraphernalia. These laws list specific prohibited items, such as opium pipes, water pipes, vials, hypodermic needles, or miniature spoons. Everyday items—such as aluminum foil and straws—can also be considered drug paraphernalia if their intended use was related to an illegal substance.

When deciding whether an object is drug paraphernalia, courts often look at different factors involved in the circumstances of the case. For instance, the judge may consider whether the alleged paraphernalia was located near illegal drugs, whether the accused made statements about the items, if the item contains any drug residue, or if expert testimony sheds light on the object or its use. No one set of circumstances exists and no single test applies in all cases, and courts have broad discretion in determining what does or doesn't constitute drug paraphernalia.

What Is Possession of Drug Paraphernalia?

Next, the prosecutor needs to show the defendant possessed the drug paraphernalia and had control over it. Possession can be actual or constructive. Actual is the easiest to prove. The prosecutor can show that you were holding it or had it somewhere on your body, such as in a pocket or backpack. You can also be convicted if the prosecution can show constructive possession or control. Constructive possession occurs when you have control over an item but don't carry it with you, such as if you have it in your glove compartment, in your home, or any place you have control over.

Is the Paraphernalia Connected to Drugs?

Finally, the prosecutor must show the defendant used the item or intended to use it in connection with an illicit drug. Prosecutors try to accomplish this in several ways. Factors they point to include whether the defendant tested positive for drugs or is a well-known drug user. They will also look at whether the item contains a usable quantity of a controlled substance or even a residual amount. Additionally, showing the items are commonly marketed for drug use or were modified for such use can help to show the drug paraphernalia's intended purpose.

What Is the Punishment for Possession of Drug Paraphernalia?

Most states prosecute possession of drug paraphernalia as a misdemeanor; however, some circumstances result in felony charges. Penalties for simple possession of paraphernalia have much lighter sentences associated with them than sentences for manufacturing or distributing drug paraphernalia.

Misdemeanor Penalties for Possession of Drug Paraphernalia

The majority of possession of drug paraphernalia cases result in misdemeanor charges. These situations involve a defendant possessing the item for personal use. Most states punish misdemeanors with jail time of up to one year and fines.

A defendant might avoid jail time for a first conviction and receive a fine-only sentence or probation. Some states allow first-time offenders to participate in a diversion program, which can avoid a conviction altogether. If a person has a long rap sheet of drug-related charges and convictions, the judge is more likely to impose some time in jail.

Felony Penalties for Possession of Drug Paraphernalia

Harsher penalties may apply when the defendant possesses the item with the intent of selling or giving it to others. Felony penalties can include prison time, fines, and probation. A defendant facing only felony drug paraphernalia charges won't likely spend time in prison. However, paraphernalia offenses tend to come along with more serious drug charges. If the defendant also faces charges for selling drugs, prison time is likely. In less serious cases, a judge might place an offender on probation and require some time in jail as part of probation.

When a court sentences offenders to probation, it requires them to comply with various conditions for a set amount of time. Common probation terms include not committing more crimes, maintaining employment, paying all required fines and court costs, performing random drug tests, participating in a drug treatment program, or performing community service. Failure to abide by the conditions can result in jail or prison time.

Civil Penalties for Possession of Drug Paraphernalia

Several states have decriminalized drug paraphernalia offenses. Possession continues to be prohibited but the offense is a civil violation or infraction rather than a criminal offense. Most often, states apply civil penalties when the drug involved is marijuana. The punishment for non-criminal violations involves financial penalties, like hefty fines.

Defenses and Immunity From Prosecution in Drug Paraphernalia Cases

Many states have enacted laws that offer immunity from prosecution in limited circumstances. Immunity from prosecution means the law prohibits the state from filing criminal charges. For those defendants where immunity does not apply, several potential defenses exist in possession of drug paraphernalia matters, which can be utilized by their defense team throughout prosecution.

Immunity From Drug Paraphernalia Charges

States generally offer immunity in cases where a person calls 911 or seeks emergency medical assistance for someone else experiencing a drug-related overdose. Referred to as Good Samaritan laws, states enact such laws to encourage people to call for help (and potentially save lives) without fear of being arrested or charged for possession of drugs or drug paraphernalia. The law protects the person who seeks medical assistance. The immunity can extend to arrest, as well as prosecution.

Defenses to Drug Paraphernalia Charges

Good Samaritan laws sometimes provide a defense to a crime rather than immunity from charging. In these states, the prosecutor could file charges and the defendant would need to raise their Good Samaritan defense in court.

Other common defenses to possession of drug paraphernalia involve poking holes in the prosecution's case. The defense might argue the prosecutor failed to prove the item was connected to drugs or even belonged to the offender.

Talk to a Lawyer

If you've been arrested for or charged with possession of drug paraphernalia, contact a local criminal defense attorney as soon as possible. A drug-related conviction can become part of your permanent criminal record and negatively affect multiple areas of your life. An experienced lawyer will discuss the unique circumstances of your case and formulate possible defenses.

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