Possession of Drug Paraphernalia
Possession of an item that meets the definition of drug paraphernalia is a first degree misdemeanor. This criminal charged comes with serious criminal penalties including a maximum possible sentence of 12 months in jail with a $1,000 fine. Florida Statute § 893.147(1) requires proof beyond all reasonable doubt two elements:
- The Defendant used or had in her or her possession with intent to use drug paraphernalia; and
- The Defendant had knowledge of the presence of the drug paraphernalia.
Important defenses exist especially when law enforcement used questionable methods to seizure of the object. An experienced attorney can file and litigate a motion to suppress the evidence. If the motion is granted it can lead the all charges being dropped. In other cases, a motion to dismiss might be appropriate if there is insufficient evidence to support the charges for actual or constructive possession.
Drug Paraphernalia Defense Lawyer in Brooksville, FL
Charges of possession of drug paraphernalia often accompany a charge of possession of marijuana or another controlled substance. If you are charged with possession of drug paraphernalia in Brooksville for Hernando County, Dade City or New Port Richey in Pasco County, Inverness in Citrus County, or Bushnell in Sumter County, then call an experienced criminal defense attorney at Ashley M. Aulls, P.A. to discuss your case.
Information on Drug Paraphernalia in Florida
- Definitions in Florida’s Drug Paraphernalia Statute
- Examples of Drug Paraphernalia
- Possession of Drug Paraphernalia
- Relevant Factors in Determine Whether an Object is Drug Paraphernalia
- Finding a Criminal Defense Attorney for Drug Paraphernalia Crimes
The standard jury instruction for the use or possession of drug paraphernalia is found at 25.14. The paraphernalia jury instruction was first adopted in 1981. The instruction was amended in 1989 [543 So. 2d 1205], 1992 [603 So. 2d 1175], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245].
The term “drug paraphernalia” is defined § 893.145, Fla. Stat., to include "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, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter."
Numerous examples of drug paraphernalia are found in the standard jury instructions and the statutory language. The most common examples of drug paraphernalia include objects used to inhale or smoke marijuana such as pipes made of wood, metal, glass, stone, acrylic, plastic, or ceramic. Other types of pipes can include water pipes or a bong. Even items like roach clips can constitute drug paraphernalia. Other common examples include scales used to determine the weight of drugs.
The statute also provides examples of drug paraphernalia for ingesting or otherwise introducing controlled substances such as cocaine or heroin. Examples of cocaine paraphernalia include cocaine vials, miniature cocaine spoons, or crack pipes. Other containers used to packaging small quantities of controlled substances can include capsules, balloons, envelopes, and other types of containers.
The statute also lists items such as kits used to cultivating marijuana, or process other types of controlled substances. Of course, hypodermic syringes, needles, and other objects designed to inject the drugs into the human body qualify as drug paraphernalia.
The standard jury instructions provide that the term to “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means:
- The paraphernalia is in the hand of or on the person;
- The paraphernalia is in a container in the hand of or on the person; or
- The paraphernalia is so close as to be within ready reach and is under the control of the person.
Mere proximity to a paraphernalia is not sufficient to establish control over that paraphernalia when it is not in a place over which the person has control.
Constructive possession means the drug paraphernalia is in a place over which the defendant has control, or in which the defendant has concealed it. In order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the defendant does not have control, the State must prove the defendant’s (1) control over the controlled substance; and (2) knowledge that the controlled substance was within the defendant’s presence.
Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person does not have exclusive possession of paraphernalia, knowledge of its presence may not be inferred or assumed.
The relevant factors are listed in Florida Statute § 893.146. The standard jury instructions provide: "In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:
- Expert testimony explaining the way that item is typically used;
- How close the item was to a chemical or controlled substance;
- Whether any drug residue is found on the item;
- Statements made by the owner of the item;
- Statements made by other individual in control of the item;
- The way the item is displayed for sale;
- Advertising materials that accompany the item explaining its use as drug paraphernalia; and
- Information on legitimate uses of the item for the consumption of tobacco products.
For any charge of Possession of Drug Paraphernalia in Hernando County, Citris County, Pasco County, or Sumter County, then contact an experienced criminal defense attorney at Ashley M. Aulls, P.A.. Call (352) 593-4115 to discuss your arrest for possession of drug paraphernalia in Brooksville, Inverness, New Port Richey, Dade City or Bushnell, FL.