Empty soda can? Could be drug paraphernalia. Grandpa's tabacco pipe? Could be drug paraphernalia. Scale found at your local grocery store to weigh veggies? Could be drug paraphernalia. What exactly is drug paraphernalia, versus something innocent? Just because an item can be used for illicit purposes, doesn't mean it's drug paraphernalia. The legislature and courts have laid out a few factors to consider when attempting to prove an item is drug paraphernalia:
- Statements by an owner of the object concerning its use (if someone is dumb enough to say "that's my crack pipe", it will be treated as such).
- The proximity of the object to the accused (in a room full of people, typically the person closest to the paraphernalia gets charged)
- The proximity of the object to actual drugs (in other words, a pipe may be used for tabacco smoking, but if there's a bag of weed right next to the pipe--consider the pipe drug paraphernalia).
- The existence of any drug residue on the object.
- The innocence of anyone in control of the object shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.
- Instructions, oral or written, provided with the object concerning its use (who would be dumb enough to do this? You'd be surprised...).
- Descriptive materials accompanying the object which explain or depict its use (similar to number 6 above).
- Any advertising concerning its use.
- The manner in which the object is displayed for sale (similar to 6,7 & 8, especially important to those running 'head shops')
- The existence of legitimate uses for the object in the community.(will the police ever testify that tabacco could be smoked in a pipe??)
- Expert testimony concerning the object's use.
Once an item is shown to be "drug paraphernalia" via the above analysis, the fun has just begun. The real challange for the state is proving 'possession'. Paraphernalia is typically found in a place that many people have access--under the passenger seat in a car full of people, in the bedroom of a house full of people, for example. The legal term for this is "constructive possession". Basically, the police consider proximity to the drug paraphernalia a primary factor in determining who to charge with the crime. So, the closer you are to the bong, the more likely it is you will take a hit for the charge. This is good news, because it's this lazy police work that can dismiss the charges. The law requires more than mere proximity to the paraphernalia. In a constructive possession case, the law requires some sort of proof connecting the item to the person arrested. Examples of how this connection can be proven are fingerprints, witness testimony, confessions, etc. With no proof of this kind, there can be no conviction for possession of drug paraphernalia. For more information on these issues, please check out my articles "Leaving Your Pipe Out Where Police Can See It May Get You a Drug Paraphernalia Charge" and "How Can Residue On My Pipe Lead to a Possession Charge?".
Another problem in proving a paraphernalia case is the element of "illicit knowledge". Many items considered drug paraphernalia are perfectly legal items. Thus, it isn't enough for the state to simply prove that a 'bong' was found in grandma's living room, the State must also prove that your 94 year old grandma knew of the illicit nature of the bong itself, or reasonably should have known. This is especially tough on cases where the paraphernalia is crafted from common household items, such as an alluminum can of soda or a pipe that can be used to smoke tobacco.
Drug paraphernalia charges are often brought as a last resort of frustrated cops that cannot charge an individual with more serious drug crimes. If you find yourself up against a paraphernalia accusation, don't wait to see what the police and prosecutor are going to do to you. Give me a call, and we'll discuss your options. Thanks.