Possession of Drug Paraphernalia
Possession of drug paraphernalia in Florida is a criminal offense and is often a companion offense to other drug possession or drug sale charges . However, this crime can be brought on its own.
What is Drug Paraphernalia?
Drug paraphernalia is anything that is used or intended to be used to help inject, ingest, inhale, or otherwise introduce an illegal drug into the body. Drug paraphernalia can also include those things that are used or intended to be used for other various drug-related purposes such as creating, containing, or concealing illegal drugs. Read Florida Statute 893.145 for Florida’s full drug paraphernalia definition.
Under Florida law, the items that are considered to be paraphernalia do not necessarily have to be complex devices. Some of the more common examples of drug paraphernalia include:
- Pipes used for smoking illegal drugs such as marijuana and crack cocaine
- Roach clips (used to hold a marijuana “joint”)
- Scales used to weigh illegal drugs
- Hypodermic syringes and needles
- Balloons, envelopes, and other objects used to contain or conceal illegal drugs
- Rolling Paper
Possession of Drug Paraphernalia Penalties
Possession of Drug Paraphernalia is a first degree misdemeanor in Florida. Although, it is not a felony, this charge can carry serious consequences. A person convicted of Possession of Drug Paraphernalia can face:
- up to 1 year in the Pinellas County jail and
- a fine of up to $1000.
In addition, a conviction for any drug related offense will often carry a stigma that can interfere with employment, leasing an apartment or home, and occupational licensing. Given these ramifications, it is important to seek the help of an experienced St. Petersburg / Clearwater lawyer.
What the State Must Prove
Under Florida Statute 893.147(1), to convict a person of Possession of Drug Paraphernalia, the prosecutor must prove that:
- The individual possessed the paraphernalia. (Possession can be either “actual” or “constructive.”); and
- The person used or intended to use the paraphernalia for an unlawful purpose.
Actual Possession vs. Constructive Possession
In Florida, a person can “possess” drug paraphernalia in two ways: actual possession or constructive possession.
An individual has actual possession when he or she has the paraphernalia on their person. This is the type of situation that most of us usually associate with possession. Someone with a crack pipe in their pocket or purse would be in “actual” possession of the pipe.
Constructive possession is a little different. This type of possession refers to a situation where an individual is aware of the paraphernalia and has the ability to exercise “dominion and control” over it (i.e., has access to it). Someone can have constructive possession of drug paraphernalia in several different circumstances. For example, if a passenger knows that there is a crack pipe in the vehicle’s unlocked glove box, the passenger has “constructive” possession of the crack pipe and can be prosecuted for Possession of Drug Paraphernalia, even though they did not own the pipe and were not actually “holding” it when the police pulled the car over. Simply knowing the pipe was in the care and having the ability to access it subjects the passenger to being charged with a criminal offense just as much as it would the driver.
It is important to keep in mind that under Florida law, individuals charged with Possession of Drug Paraphernalia do not need to own the paraphernalia in order to possess it. As the examples above show, the person did not need to own the pipe in order to be charged with Possession of Drug Paraphernalia. The pipe could have belonged to a friend or a complete stranger. It only matters that the person either had the paraphernalia on their person or that he/she was aware of the presence of the drug paraphernalia and had the ability to gain access to it. Thus, where a crack pipe is locked in a glove box and the passenger lacks the key, or knowledge of the pipe’s presence, the passenger would not be guilty of possessing drug paraphernalia under Florida law.
Law enforcement personnel do not always have to catch a person in the act of using or attempting to use drug paraphernalia for its prohibited purpose. In fact, the prosecutor can try to prove that the person used or intended to use the object for an illicit purpose in many other ways. Some of the more common methods include:
- The existence of drug residue on the object
- Testimony of those familiar with the object as to its use (i.e., testimony of a law enforcement officer trained in narcotics enforcement that the object is commonly used for illegal drug related purposes)
- The object’s discovery nearby illegal drugs
Possible Defenses: How We Can Fight a Possession of Drug Paraphernalia Charge
Unlawful Search: Possession of Drug Paraphernalia cases usually flow from a search conducted by local law enforcement. The 4th Amendment protects you against unreasonable searches and seizures. This is a complex area of the law. An experienced St. Petersburg / Clearwater attorney can review the facts and circumstances of your case and inform you as to whether an illegal search took place in connection with your arrest. An illegal search may result in the suppression of the drug paraphernalia evidence in your case. Eliminating that evidence will put you in a position to seek the possible dismissal of the charge.
Defenses: Other defenses against a Possession of Drug Paraphernalia charge can vary widely depending on the unique facts of each case. In a constructive possession case, for example, an experienced attorney might argue that his client was unaware of the paraphernalia or unable to gain access to it. Many court cases exist that support the argument that an individual’s mere close proximity to a drug paraphernalia is insufficient to uphold a conviction for this charge.
We Can Help Even If the Facts Are Against You
Sometimes it is not appropriate to fight a Possession of Drug Paraphernalia charge by challenging the facts or raising defenses. But this does not mean that an individual charged with this crime is without options. At a free consultation, we can consider whether the following options may be available, depending on the facts and circumstances of your particular case:
- Dismissing the Charge: We can apply for your participation in a “diversion program.” Your successful completion of the program will result in a dismissal of the charge.
- Avoiding Conviction: We can negotiate with the prosecutor and the court in an effort to secure a “withhold of adjudication.” This final disposition allows you to avoid a formal conviction.
- Seeking a Lenient Sentence: We can present the court with background information and mitigating evidence that may result in a more lenient disposition.
- Sealing Your Records: After your case is resolved, we can petition the court to seal or expunge all of the records relating to your Possession of Drug Paraphernalia arrest and prosecution. This would “scrub” your records and give you the right to truthfully state (with a few limited exceptions) that you had not been arrested or charged with the crime.