What exactly is Drug Paraphernalia?
- Empty 2-liter soda bottle from last night’s pizza party
- Duct tape for fixing your broken hose
- Broken piece of hose you were going to patch
- Balloons from last night’s pizza party
- Grocery store scale to weigh your food
- Miniature spoons used for mixing last night’s cocktails
- Grandma’s Waring Blender
If you have any of these items lying around your home, then here’s something you should know…
Any of these innocent kitchen and household items can be considered “drug paraphernalia” under the following circumstances:
- Statements by the owner of the object or person controlling the object concerning its use (if someone is foolish enough to say “that’s my cocaine spoon”, it will be treated as drug paraphernalia);
- The proximity of the object to the “controlled substances” (in other words, your kitchen scale may be used to weigh your food portions, but if there are little plastic baggies containing cocaine right next to your scale, that scale will be considered drug paraphernalia);
- The existence of any residue of controlled substances on the object;
- The innocence of the owner or of anyone in control of the object won’t prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia;
- Written or oral instructions, on how to use the object;
- Descriptive materials accompanying the object which explain or depict its use;
- National or local advertising concerning its use;
- The manner in which the object is displayed for sale (this is important if you own a retail store that sells water pipes, Zigzags, rolling paper kits, scales, etc.);
- Whether your items have legitimate uses in the community;
- Expert testimony concerning the object’s use; and
- How close you are in relation to the object (if you’re at a house party and you are the person closest to the item in question, YOU may get charged with possession of drug paraphernalia).
Secrets the Prosecutor Doesn’t Want You to Know
Just becauseyour household item can be used for illegal purposes, doesn’t mean it is drug paraphernalia. First, the State must PROVE it is drug paraphernalia.
Then, the State must then PROVE that you were in “possession” of that paraphernalia. You can be considered to be “in possession” of drug paraphernalia even if it isn’t in your hands or in your pockets. Police will consider your proximity to the drug paraphernalia, if they are looking to arrest you for possession. For example, if you and 3 other people are in a car and drug paraphernalia is found under your seat you could be found in “constructive possession” of the paraphernalia. Another example would be if you were at a house party with a lot of people and you happened to be closest to the drug paraphernalia, you could be charged with “constructive possession.” Constructive possession is a legal term meaning that you are close enough to the drug paraphernalia to have access or control over it. In other words, the closer you are to the drug paraphernalia, the more likely it is that you will be arrested and charged with possession, even if it’s not actually on your person.
But this actually makes the Prosecutor’s job harder because the law demands PROOF that you are somehow connected to the drug paraphernalia found near you; either by your confession of ownership, or by finding your fingerprints on the illicit items or substance, or by sworn statements of eye-witnesses. Without any kind of significant proof to support the charges, you cannot be convicted of constructive possession of drug paraphernalia.
But wait! There’s still more that the Prosecutor must prove…
Merely being in close proximity to drug paraphernalia is not enough to bring a conviction of constructive possession. Florida law requires
- that you know that the item is near you, and
- that you know of its intended illicit use, and
- that you have dominion and control over the item.
Let’s say you were driving your friend’s car, you were pulled over and the police found drug paraphernalia in the glove compartment. Can you be convicted of possession of drug paraphernalia? Not unless they could PROVE you knew it was there.
Maybe you got pulled over while driving your friend’s car and the officer found a pipe sitting in the cup holder in plain view. Can you be convicted of possession of drug paraphernalia? Not unless they can prove you knew the pipe was used for smoking illicit substances.
What if you’re driving your friend home, you see the flashing lights of a police car behind you, and as you pull over your friend pulls out his marijuana pipe and places it under his seat. After the officer sees your friend’s pipe and arrests you both, can you be convicted of possession of drug paraphernalia? No, because he is the only one who has dominion and control over the pipe.
Is Your Arrest for Possession About To Ruin Your Life?
Sometimes, when law enforcement cannot arrest you for more serious drug crimes, they will arrest you on Drug paraphernalia charges.
The definition of drug paraphernalia under Florida drug laws is vague and subject to the interpretation of the prosecuting authorities. If you were not involved in drug-related activities, an experienced Florida Criminal Defense attorney can help you fight false allegations against you.
If you are accused of possession of drug paraphernalia and there is an investigation going on, the Florida Criminal Defense Law Offices of Richard G. Salzman, P.A. can help. Richard G. Salzman and his dedicated staff will thoroughly evaluate your case and advise you of the best defense.
For your FREE initial phone consult, call today 855-DUI-GONE (855-384-4663), home of Florida’s premier criminal defense law firm. Can you really afford to wait?