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.
All states have laws that criminalize the sale, use, and possession of drug paraphernalia, though the wording of these laws and how they apply differ. These laws are often broadly applied, and a court can find almost any item is drug paraphernalia under the right circumstances.
- Definition. Many state laws specify what equipment qualifies as drug paraphernalia. These laws list specific items that are prohibited, such as opium pipes, water pipes, vials, hypodermic needles, or miniature spoons. Paraphernalia can also include items used for manufacturing, growing, weighing, or packaging illegal drugs, such as scales or plastic baggies.
- Use, intent, or design. Many, if not all, of the items that are designed as drug paraphernalia also have non-drug related uses. Similarly, items that aren't specifically designed for drug use can often be used as drug paraphernalia. In drug paraphernalia cases, a prosecutor can show possession of the prohibited items by showing they were actually used for drug use, or that the person possessing them intended them for drug use.
- Circumstances. When courts consider if an object is drug paraphernalia, they often look at different factors involved in the circumstances of the case. Courts will look at whether the alleged paraphernalia was located near illegal drugs, whether the accused made statements about the items, if the items contains any drug residue, or even expert testimony about the object or its use. There is no one set of circumstances and no single test that applies in all cases, and courts have wide discretion in determining what is or is not drug paraphernalia.
- Actual or constructive possession. While you can be convicted of possession of drug paraphernalia if 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.
- Simple possession or possession with intent to sell, deliver, or distribute. Drug paraphernalia charges are often differentiated between possession and distribution crimes. Possession crimes involve the personal use of drug paraphernalia, while possession or distribution charges involve selling or providing paraphernalia to others.
Possession of drug paraphernalia is usually charged as misdemeanor offense, though felony charges are possible in some states and in some situations. Sentences for simple possession of paraphernalia have much lighter sentences associated with them than sentences for manufacturing or distributing drug paraphernalia.
- Jail or prison. Some drug paraphernalia laws allow for up to a year in jail, though lighter sentences, such as up to 90 days, are also common. A court may impose a jail sentence individually or in addition to a fine or other penalties.
- Time served. Courts may also sentence a person convicted of possession of paraphernalia to “time served.” This means that the court considers the time the person spent in jail after the arrest but before conviction and uses it as the jail sentence instead of requiring additional jail time.
- Fines. Fines are a common penalty for drug paraphernalia convictions, and courts often impose fines instead of jail sentences, especially for first time offenders. A typical fine for a first time offender may be a few hundred dollars or as much as $500 or more, while repeat offenders may face higher fines of $1,000 or more.
- Probation. Probation sentences are also common with possession of drug paraphernalia convictions. When a court sentences people to probation it requires them to comply with various orders for a number of months, typically 12 or more. Common probation orders 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.
- Diversion. Some drug paraphernalia offenders may be able to avoid a conviction by participating in a pretrial diversion program. Diversion programs -- also known by a variety of names such as deferred prosecution or pretrial intervention -- are designed to give first-time offenders the chance to make amends for the criminal activity without being convicted of a crime. A person who agrees to enter into diversion must comply with conditions that are nearly identical to probation, typically for a period of a year or more. After successfully completing the diversion program, the prosecutor agrees to drop the charges.
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Talk to a Local Attorney
Though a possession of drug paraphernalia charge may seem like no big deal, a conviction can follow you for the rest of your life. If you've been charged with a paraphernalia crime, or have had a recent run-in with the police and you suspect you might be, you need to speak to a local criminal defense attorney as soon as possible. A local criminal defense lawyer can advise you what you should do based on the law of your state as well as the lawyer's experience with local courts and prosecutors. You should never speak to the police about your case or make any decisions until you've spoken to an experienced defense lawyer about your paraphernalia charge.