Under Florida law, Possession or Use of Drug Paraphernalia is a first degree misdemeanor, with penalties that may include jail or probation. Drug paraphernalia is any object or material intended for the production, use, or processing of a controlled substance.
Definition of drug paraphernalia
Under Section 893.145, Florida Statutes, drug paraphernalia is defined as “all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance . . .”
Common examples of Drug Paraphernalia include the following:
- Hypodermic syringes, needles, and other objects used for injecting controlled substances into the human body;
- Containers and other objects used in storing, concealing, or transporting controlled substances;
- Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
- Rolling papers, cutting devices, testing devices, balloons, and baggies;
- Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances;
- Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes, with or without screens, permanent screens, hashish heads, or punctured metal bowls;
- Water pipes, smoking and carburetion masks, other air driven pipes, “roach clips,” bongs, “whip it” devices for expelling nitrous oxide, “crackers,” and vials.
PENALTIES FOR PARAPHERNALIA
In Florida, possession or use of drug paraphernalia is classified as a first degree misdemeanor, with penalties that may include up to 365 days in jail or 12 months probation, and a $1,000 fine.
If placed on probation, a defendant will typically be ordered to submit to random drug testing and may even be ordered to enroll in a drug evaluation and treatment program. Often, a charge of paraphernalia possession will be joined with other common possession charges, such as possession of cannabis, possession of cocaine, or possession of a controlled substance with the intent to sell.
The determination as to whether a person was in “possession” of the item alleged is one of the most common issues in a paraphernalia case. In Florida, possession may be actual or constructive in nature.
With actual possession, the paraphernalia is on the person of the defendant, in a container in the hand of a defendant, or is within ready reach of the defendant and under his or her control.
Constructive possession means that the paraphernalia is not on the defendant’s person, but is in a place where the defendant has concealed the item or has control over the item. In cases where the paraphernalia is in a place where the defendant does not have control, there must be evidence that:
- The defendant had control over the paraphernalia; and
- knowledge that the paraphernalia was within the defendant’s presence.
There are many scenarios where constructive possession of drug paraphernalia is difficult to prove. The most common situations include:
- joint occupancy of a vehicle;
- joint occupancy of residence;
- presence at a location with multiple persons; and
- presence in a vehicle owned or operated by another person.
The defendant may not know of the presence of the paraphernalia and, even if knowledge is proven, it does not follow that he or she necessarily had control of the item.
DEFENSES TO A PARAPHERNALIA CHARGE
We fight paraphernalia charges on two levels:
- Challenging the legality of police conduct that led to the search or seizure of evidence, and
- Challenging the prosecution’s factual assertions that the accused was in “possession,” as defined under Florida law.
One issue in any paraphernalia case is whether the arrest, search, or detention conducted by police was lawful. If not, this may provide grounds for the filing of a Motion to Suppress. If granted, a Motion to Suppress will have the effect of excluding all evidence derived from the unlawful police activity. Without the evidence, typically the State will be unable to prove its case.
Where a Motion to Suppress is not viable, there are numerous defenses that can be raised to challenge the sufficiency of the proof offered by the prosecution. Common examples of these types of “factual” defenses include the following:
- Was the accused the only person in the car or dwelling
- Was the accused in exclusive possession
- Were the items found on the accused’s person, or were they located in a place where multiple persons had joint access
- Was the accused driving the car, or did the accused have the authority to maintain control over or manage the premises
- Can the State prove that the accused had knowledge of the presence of the paraphernalia
- Did the accused not know of the illicit nature of the paraphernalia
- Does the alleged paraphernalia serve a dual-use purpose
- Was there residue found on the alleged item of paraphernalia
These are just a few of the defenses that may be raised in a paraphernalia case. Case decisions in Florida provide a vast array of other defenses, both legal and factual in nature. For this reason, you should consult with an attorney before making any decisions in your case.
For more information please contact our office now to set up an appointment with attorney Daniel Lenghea to determine the best cause of action.