Can You Be Convicted of Paraphernalia if the “Drugs” Weren’t Illegal?

By: John Guidry

Orlando seems to have quite a few drug choices these days. The biological urge to eat, survive, and procreate seems to be right up there with the urge to get high. Rather than finding the cure for cancer, some folks have focused their efforts on finding new ways to alter their consciousness.

I’m no evolutionary biologist, but it’s safe to say these activities have been around for a long time. For example, how many different animals did humans lick before figuring out that licking the Sonoran Desert Toad has a psychedelic effect? (There was even a “Church of the Toad of Light”—I kid you not).

So, if we’ve resorted to licking toads, it’s no surprise we have arrived at synthetic weed. It’s called by a variety of names, like “Spice,” “K2,” or “Mr. Nice Guy.”

Here is the problem: Cops claim to know everything about weed. But they don’t. They often have no clue about the thousands of synthetic chemical variations that exist. Yet, they would rather arrest a citizen based on a hunch than do the actual investigative work.

Arrested for “Synthetic Marijuana” or Paraphernalia in Central Florida?

Call John today at (407) 423-1117. We force the State to prove every element of the charge.

The Legal Breakdown: C.M. v. State

Let’s look at a case that exposes the laziness of “good old fashioned police work.” The case is C.M. v. State, 83 So. 3d 947 (Fla. 3d DCA 2012).

• The Bust: C.M., a juvenile, was arrested after a school backpack search found a green leafy substance and a glass ear dropper used as a pipe.
• The Cop’s “Expertise”: At trial, the officer admitted he didn’t test the substance. Instead, he testified that “based upon his training and experience” (a phrase that usually signals a lack of actual evidence), the substance looked and smelled like marijuana.
• The Defense: C.M. took the stand and testified the substance wasn’t pot; it was “Mr. Nice Guy,” a legal synthetic at the time. He admitted he used the dropper to smoke it.
• The Split Decision: Because the officer had no lab results, the judge dismissed the Possession of Cannabis charge. However, the judge still found the kid guilty of Possession of Drug Paraphernalia for the pipe.

The Ruling: The conviction for the pipe was overturned. Here is the logic:

• The Definition of Paraphernalia: To be guilty, the State must prove you possessed an object with the intent to use it to inhale a controlled substance.
• The “And” Factor: Because the judge had already ruled the “weed” wasn’t proven to be a controlled substance, the pipe could not be considered paraphernalia. You can’t have a “drug pipe” without the “drug.”
• The Failure of Proof: As the court noted, “Because the evidence failed to establish the substance… was a controlled substance… the finding of guilt for possession of drug paraphernalia cannot stand.”

John’s Takeaways

This case highlights exactly why we fight every single charge. If you are facing drug charges in Orange, Seminole, or Osceola County, keep this in mind:

• “Training and Experience” is Not Enough: Police love to say, “I know it when I see it.” We don’t let them get away with that. If they didn’t send it to the lab, we move to dismiss.
• The “Nexus” Defense: A pipe is just a pipe unless it is connected to an illegal substance. If the State can’t prove the residue or the substance found with it is illegal, the paraphernalia charge should crumble.
• Don’t Do the Cop’s Job: In this case, the kid testified. While it worked out for him on the specific facts, usually, talking is a bad idea. Let your lawyer make the arguments.
• Lab Results Rule: Synthetic drugs are complicated. If the specific chemical compound isn’t on the banned list, it isn’t a crime. We force the State to get the chemistry right.

Don’t Let Them Guess Their Way to a Conviction

Police officers often arrest first and ask questions later (or never). They count on you pleading guilty to a “minor” paraphernalia charge just to get it over with. Don’t do it.

If you have been charged with possession of paraphernalia or synthetic drugs, you need a defense that understands the science and the law.

Call me at (407) 423-1117. Let’s make them prove it.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.