“Drug paraphernalia” is a term used to describe pretty much anything that can be used used for making, using or concealing illegal drugs. The term is pretty broad—what counts as “paraphernalia” can vary depending on jurisdiction and circumstances.
Paraphernalia can also be considered user-specific (items that are commonly used to use or consume the drugs), or dealer-specific (items used by the drug sellers to prepare the drugs for distribution). Common items of user-specific drug paraphernalia, for example, can include things like:
- Freebase kits;
- Roach kits;
- Hollowed out cosmetic cases or fake cell phones; and/or
- Emptied out pens.
Products that claim to cleanse a person’s system of drug residue to increase their chances of passing a drug test can also be considered drug paraphernalia, since they are intended to conceal the person’s drug use.
Dealer-specific paraphernalia can include items such as:
- Fertilizer and fluorescent grow lights (used in growing marijuana plants);
- Digital scales;
- Vials; and/or
- Small plastic storage bags.
In 2018, vaporizer pens flooded the market and were a common sight. However, most vape pens are for e-cigarettes, which are legal so long as the user is 18 and older. But vape pens are also used for marijuana, and it is not easy to tell the difference.
As of December 2018, vape pens are not considered drug paraphernalia as it is more commonly and widely used for e-cigarettes. However, the Controlled Substances Act (CSA) has a very broad definition of what is drug paraphernalia, for situations like vape pens becoming popular with drug users. Only time can tell if the CSA will be applied to items like vape pens.
Is It a Crime to Sell or Own Drug Paraphernalia?
It depends. You can legally own a pipe or smoking device as long as you use it for tobacco. However, it is illegal to use those same devices to use illegal drugs, such as marijuana or opiaes.
Items that are otherwise legal (such as plant fertilizer or plastic tzipper bags) can be considered illegal drug paraphernalia when used to grow, produce, package, or manufacture illegal drugs.
In most states it is illegal to possess, sell, transfer, or make a pipe or other device specific for the smoking or injection of illegal drugs. Some states also have laws that make it a crime to advertise the sale of drug paraphernalia.
Does the Surrounding Circumstances of Drug Paraphernalia Matter?
When determining whether a particular item actually is drug paraphernalia, courts will often look at different factors in the circumstances of the case. For example, the court may consider whether the item was found near illegal drugs, whether it contains any drug residue, or whether the defendant made statements about the items.
In some cases, there may even be expert testimony about the item and its use. While the circumstances are important when it comes to determining whether an object counts as drug paraphernalia, every case is different, and no single test applies in all cases.
Is Possession Necessary for a Charge Related to Drug Paraphernalia?
Possession of the paraphernalia is often a factor in determining whether a conviction is appropriate. However, you don’t have to have the item physically on your person in order to be considered in possession of it.
While you can be convicted of possession of drug paraphernalia if you are holding it in your hand or have it in your pocket, you can also be convicted if the prosecutor can show constructive possession or control.
Constructive possession happens when you have control over the item, but you don’t carry it with you. If the item is being kept in an area that you have control over, you are considered to be in possession of the item.
For example, if you have a bong in your glove compartment or in a locked locker that only you have the key to, you can have constructive possession of the bong even if you’re not carrying it around town with you.
What are the Penalties for a Drug Paraphernalia Charge?
Depending on where you live, possession of drug paraphernalia is usually a misdemeanor offense. Most of the time you may face a fine, which can be as low as a few hundred dollars, and a criminal charge on your permanent record.
Some states may require a brief time in jail, from as little as 90 days to as much as a year. In some instances, a defendant may be sentenced to “time served,” meaning that the time they spent in jail between their arrest and conviction is sufficient instead of requiring additional jail time.
Of course, repeat offenders may face higher fines and more jail time than first time offenders. Selling drug paraphernalia can also have higher penalties, with fines of up to $5000 and up to two years in jail.
Certain circumstances may lead to more strict penalties, as well. Some states require enhanced sentences if the crime occurs on school property or in a public park, or if the offender was over eighteen years old and providing drug paraphernalia to a child under the age of eighteen.
Could I Be Sentenced to Probation for a Drug Paraphernalia Charge?
Probation is a common sentence for possession of drug paraphernalia. Some courts may require you to comply with a list of specific requirements during your probation period (which can be 12 months or more).
Common requirements during probation include not committing any more crimes, maintaining consistent employment, paying court costs and fines, participation in a drug treatment program and/or submitting to random drug tests, or performing community service.
Do I Need to Talk to a Lawyer If I am Facing a Drug Paraphernalia Charge?
If you are facing drug charges, an experienced criminal defense attorney can help you navigate the nuances of the criminal justice system. It is in your best interests to talk to a lawyer who can help you talk through the circumstances surrounding your charges, present your best defense, and help protect your legal rights.