In order to answer this question, we must first distinguish between federal law and state law. Under federal law many drugs, including marijuana, cocaine and heroin are considered illegal. The law on this subject can be found in the United States Code, Title 21, Section 863 ( abbreviated as 21 USC 863).
This portion of the U.S. code concerns Controlled Substances, and related issues including the use of paraphernalia. The law makes it illegal to sell or distribute drug paraphernalia. It is also illegal to send it through the U.S. mail system, to send it across state lines, and to import and/or export it.
Based on this, it is not a crime to be in simple possession of drug paraphernalia. However, if an individual is caught with paraphernalia, it may be tested by a police crime lab to find out whether the item or items have been used for illegal drug use, which would then result in criminal charges. Some common types of items which are included in the category of drug paraphernalia are:
- Pipes made of glass, ceramic, wood, stone or plastic;
- Clips used to hold joints that are too small to be held with fingers;
- Bongs or other water pipes; or
- Small spoons that may be used to ingest cocaine or crack.
Mere possession of these types of items, once again, may not amount to a crime under federal law; however, the items may be tested to determine whether their owner was engaged in illegal drug use. The sale of these items is a crime.
Many of these can still be found in shops that cater particularly to these types of items, or in convenience stores or through online vendors. They are often marketed for a different purpose than that for which they are actually intended. For instance, a marijuana pipe may be marketed as being for “tobacco use only” in order to avoid violating laws.
Of course, there are many items that are common in daily use, which are not specifically meant for drug use but which are used for that purpose. These items may include:
- Credit cards;
- Various types of glass pipes and tubes;
- Razor blades;
- Aluminum foil;
- Regular spoons; and/or
- Syringes and needles.
These items, like those listed above, can still be used to prosecute individuals who possess them if other evidence is uncovered to show that the individual did in fact engage in illegal drug use. Items used to grow, produce, package, or otherwise manufacture illegal drugs may also be considered drug paraphernalia.
In terms of state law, many states have legalized marijuana in recent years. While marijuana sale and possession remain crimes under federal law, new states continue to legalize marijuana use each year. In many cases, those states have also done away with the laws or portions of laws that made it illegal to possess or sale paraphernalia known to be specifically for marijuana use.
In states where marijuana has not been legalized, it generally remains a crime to possess marijuana paraphernalia. Also, paraphernalia used for other illegal drugs remains illegal everywhere. The specifics of laws will vary by state. You should be aware of the paraphernalia laws for the state in which you live.
Legal penalties for paraphernalia tend to be less severe than those for possession of actual illegal drugs. Under federal law, there is a three-year maximum prison sentence for selling paraphernalia. Fines may also apply.
In most cases, possession of drug paraphernalia under state law is categorized as a misdemeanor. Once again, offenders may be fined and have a criminal record reflecting their offense. There are some states in which an offender may also be required to serve short prison sentences.
The sale of drug paraphernalia can sometimes carry stiffer penalties, with fines of up to $5000 and prison sentences of up to two years. These are usually imposed for more serious charges involving felony consequences.
The penalties for drug paraphernalia may be more severe if the crime takes place on public school or park property, or other property which minors are known to frequent. For the same reasons, offenders who are caught trying to sell paraphernalia to minors may also receive more severe criminal penalties.
If you have been charged with the possession, sale or related drug paraphernalia crime, you should consider contacting an experienced criminal defense attorney, who can advise you of your legal rights and defenses. Drug offenses are serious crimes which can affect your future, and it is in your best interests to have an attorney who understand the laws and legal system represent you.
Last Modified: 2019-05-01 23:12:29