“Drug paraphernalia” describes anything that can be used for using, making, or concealing illegal drugs. The term is pretty broad. What counts as “paraphernalia” can vary depending on the city or state regulations defining the term. This is especially in flux today, as the use of recreational marijuana is now legal in 21 states.
Some drug paraphernalia that is illicit now may be made legal as the laws around marijuana change. For this article, marijuana will be considered an illegal drug; thus, using paraphernalia to smoke marijuana will also be illegal.
Paraphernalia can be divided into user-specific (items commonly used to use or consume the drugs) and dealer-specific (items used by the drug sellers to prepare the drugs for distribution).
Common examples of user-specific drug paraphernalia include things like:
- Freebase kits
- Roach kits
- Hollowed-out cosmetic cases or fake cell phones
- Emptied pens
Products that claim to cleanse a person’s system of drug residue (purchased 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
- Small plastic storage bags.
In recent years, vaporizer pens have flooded the market and are now a common sight. Most vape pens are for e-cigarettes, which are legal so long as the user is of age to use them in their home state. But vape pens are also used for marijuana, and it is not easy to tell what the pen is used for. Vape pens are not considered drug paraphernalia because they are more widely used for e-cigarettes.
However, the Controlled Substances Act (CSA) broadly defines drug paraphernalia for situations like vape pens becoming popular with drug users. Only time can tell if the CSA will be applied to vape pens.
Is It a Crime to Sell or Own Drug Paraphernalia?
Sometimes. It depends on the circumstances. You can legally own a pipe, bong, or other smoking device if you use it for tobacco. However, it is illegal to use those same devices to use illegal drugs, such as marijuana or opiates.
In most states, possessing, selling, transferring, or making a pipe or other device specific for the smoking or injection of illegal drugs is illegal. Some states also have laws that make it a crime to advertise the sale of drug paraphernalia.
Items that are otherwise legal (such as plant fertilizer or plastic zipper bags) can be considered illegal drug paraphernalia when used to grow, package, or create illegal drugs.
Do the Surrounding Circumstances of Drug Paraphernalia Matter?
When determining whether a particular item is drug paraphernalia, courts will look at the. 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 concerning illegal drugs when talking about the items. Sometimes, expert testimony about the items and their common practice use may even exist.
The details are important when 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?
To be convicted of possessing drug paraphernalia, you must possess it. However, you don’t have to have the item physically on your person 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 don’t carry it. If the item is being kept in an area you control, you are considered to have the item.
For example, if you have a bong in your glove compartment or 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. This is also true if the police find the items in your home, even if you are not there. You are considered to be in constructive possession of the items and can be convicted of possessing drug paraphernalia.
What are the Penalties for a Drug Paraphernalia Charge?
Although it can vary from state to state and city to city, possession of drug paraphernalia is usually a misdemeanor offense. Most of the time, you must pay a fine, which can be as low as a few hundred dollars. Unfortunately, a criminal charge for a misdemeanor will be placed on your permanent record.
Some states require a period in jail. Typically, it will be from a week or a few months, but you can be sentenced to as much as a year.
In some instances, If the defendant could not make bail and instead passed the time between arrest and trial (or plea) in the county jail, the defendant may be sentenced to “time served,” meaning that the time they spent in jail between their arrest and conviction counts toward the amount of jail time of their punishment, and since they spent at least that much time in jail awaiting the conclusion of the matter, that amount of time is sufficient to fulfill the terms of the punishment. No additional jail time will be required.
Of course, repeat offenders will face higher fines and more jail time than first-time offenders. Selling drug paraphernalia or using it to manufacture drugs can also have higher penalties than possessing them for personal consumption, with fines of up to $ 5,000 and up to two years in jail. Any punishment requiring more than one year of incarceration means that the possession conviction was for a felony, not a misdemeanor. Felonies are much more serious convictions than are misdemeanors.
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 is over eighteen years old and provides drug paraphernalia to a child under 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 specific requirements during your probation period (12 months or more). Common requirements while on probation include:
- Not committing any more crimes
- Maintaining consistent employment
- Paying all court costs and fines
- Participation in a drug treatment program
- Submitting to random drug tests
- Performing community service
- Appearing at the probation office regularly
- Allowing the police to investigate a car or home without notice any time the police have reason to investigate
Do I Need to Talk to a Lawyer If I Face a Drug Paraphernalia Charge?
If you are facing drug charges, an experienced drug lawyer can help you navigate the nuances of the criminal justice system. It is best to talk to a lawyer who can help you understand the circumstances surrounding your charges, present your best defense, and help protect your legal rights.