Drug paraphernalia is considered the equipment, accessories, or products used for making, concealing, or modifying drugs that are used for recreational purposes. These drugs most often include methamphetamine, heroin, cocaine, and marijuana. Drug paraphernalia is classified into two categories:
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User-Specific Drug Paraphernalia
User-specific paraphernalia consists of the crack cocaine pipes, hashish bongs, smoking masks, hashish pipes, roach clips, syringes, or kits for cocaine freebase. There are some items sold in stores for growing hydroponic marijuana, such as the fluorescent grow-lights, guidebooks, and fertilizer.
Drug paraphernalia can also include cosmetic cases that have been hollowed-out or pagers that are not real and are being used to hide illegal drugs. Others include the products which are intended to cleanse a user’s system of drug residues, so they are able to pass a urine analysis designed to detect drug use.
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Dealer-Specific Drug Paraphernalia
Dealer-specific paraphernalia is the equipment, product, or accessories used by drug traffickers when preparing drugs for distribution. This paraphernalia consists of vials, digital scales, and storage bags used to sell marijuana, heroin, and crack.
In the 1980s, the practice of selling drug paraphernalia on the streets ended as anti-paraphernalia laws were implemented. The Statute, 21 USC 863 under the Federal Drug Paraphernalia law, states it is illegal to transport through the mail system, sell, carry across state lines, export, or import defined drug paraphernalia. State laws generally reinforce this statute.
There are additional items that are considered drug paraphernalia under the law which is often used in association with illegal drugs:
- Pyrex test tubes
- Lighters
- Rolled up currency
- Razor blades
- Small mirrors
- Credit cards
- Aluminum or tin foil
- Spoons
These items, while considered ‘ordinary’ things in general, have been recognized as evidence of drug paraphernalia when used in connection with illegal drug use. Under the United States Federal Statute, paraphernalia is defined with its concept of primary use. This concept means that if an individual is primarily using an ordinary item for use with illegal drugs, it then becomes drug paraphernalia.
There are both Federal and State Laws in place, which determines it is illegal to be in possession of drug paraphernalia. In the State of Florida, if you are found with the possession of drug paraphernalia, you can be arrested. The above definition and examples are those used by the federal government in determining ‘what is drug paraphernalia’? The State of Florida under Section 893.145 has its description as:
- Any equipment, material, or product used or intended to be used in
- Cultivating
- Growing
- Preparing
- Planting
- Manufacturing
- Processing
- Testing
- Analyzing
- Propagating
- Harvesting
- Compounding
- Converting
- Processing
- Storing
- Packaging
- Re-packaging
- Concealing
- Containing
- Ingesting
- Inhaling
- Transporting
- Injecting
- Or any other form of introduction of illegal drugs into the human body
Examples of what is considered drug paraphernalia under Florida State Laws include:
- Objects or containers that are used to conceal, store, or transport controlled substances
- Balances or scales used to weigh or measure controlled substances
- Needles, hypodermic needles or other items which are used for injecting controlled substances into the body
- Testing devices, balloons, baggies, rolling papers, and cutting devices found in connection to illegal drugs
- Spoons, containers, bowls, blenders or other mixing devices that are used for compounding controlled substances
- Plastic, stone, acrylic, metal, ceramic, or wooden pipes whether with screens or without, hashish heads, punctured metal bowls and permanent screens used in connection with illegal drugs
- Carburetion or smoking masks, water pipes or any other air driven pipe, whip-it devices used for expelling nitrous acids, roach clips, vials and crackers used in connection with illegal drugs
In determining if any of these objects qualify as ‘drug paraphernalia,’ it will be tested for drug residue. Having even a minuscule quantity of illegal drug residue on an item will be sufficient evidence for the prosecution to use the item as evidence against you. A good defense attorney will verify this evidence, as sometimes the prosecution will utilize the items as ‘evidence of intent.’ Using the items as evidence of intent means there was no residue found, but the nature of the item suggests you intended to use it for illicit purposes. You will need the legal experience of Arnold Law to fight these allegations.
The State must show the drug paraphernalia you were caught with has been used or will be used to inject, inhale, or ingest an illegal drug substance into your body or another’s. The State is going to have a difficult time proving this is the case, and each case is different. Most courts believe a law officer is able to identify cannabis based on how it looks, smells, and is packaged.
Based on this belief, officers are able to identify rolling papers or pipes when they are found at the same time and in close space with raw marijuana. The State will use this belief of the courts to prove their theory of intent. Police are also allowed to use field test kits to determine the presence of residue in a syringe or pipe. If the test shows there is a residue of an illicit substance, this can be the evidence they need to prove the paraphernalia was intended to be used with an illegal substance.
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Drugwipe Test
The drugwipe test is used by law enforcement as a roadside test to wipe surfaces and discover if there is any trace of drug residue. This test can also be used for saliva and sweat testing. If an officer has reason to believe you are driving while under the influence of an illegal substance, they are allowed to perform a drugwipe test.
The drugwipe test is performed by wiping a moist wiping fleece on the surface of an object believed to be drug paraphernalia, the tongue, palm, or forehead. A sealed glass tube containing a liquid substance is then broken to act as a medium while transporting the collected sample.
As with other roadside tests performed by law enforcement, your attorney at Arnold Law may be able to dispute the results from the drugwipe test. You need to contact them as soon as you are arrested, so they are able to begin building your defense.
Under the law in the State of Florida, if you are arrested with the possession of drug paraphernalia, you are facing a first-degree misdemeanor. You will want to contact the offices of Arnold Law to fight these charges and protect your rights. In many cases where one is charged with drug paraphernalia, it is the result of law enforcement overstepping their bounds. You will need the experience of Arnold Law to handle these charges and find the best legal defense for you.
Determining Possession of Drug Paraphernalia Charges
In the State of Florida, it has to be determined that you were in 'possession' of an item defined as 'drug paraphernalia.' Under state laws, this possession can be either constructive or actual in nature.
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Constructive
Constructive possession is proof the drug paraphernalia was in a place where you concealed the item or items, or they were in a place that is controlled by you. These items were not found on your person, but it must be proven that you had control over them and/or had knowledge that the paraphernalia was within your presence.
Constructive possession is difficult to prove by the prosecution, but you need help from Arnold Law to help fight these allegations. Common situations of alleged constructive possession include:
- You were in the same vehicle as another where paraphernalia was discovered
- You were in the same residence as another and paraphernalia was found
- You were in a location where paraphernalia was found with multiple persons
- You were in a vehicle owned by someone else where the paraphernalia was discovered
In many of these instances, Arnold Law can show that even though you were in the presence of the drug paraphernalia, it does not prove that you had control of the items. Control of the items must be proven in order for you to be charged.
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Actual
Actual possession of drug paraphernalia means the items would have to be found on your person. The items would have to be in your hand or within easy reach for you.
Penalties if Convicted for Possession of Drug Paraphernalia
The State of Florida classifies possession of drug paraphernalia as a first-degree misdemeanor. If convicted of these charges, the penalties can include up to one year in jail or twelve months of probation. You may also be fined up to $1,000.
Probation for a first-degree misdemeanor on a drug paraphernalia conviction generally comes with a requirement to have random drug tests. You may also be required to enroll in drug evaluation or treatment programs. Most often, if you are facing charges of possession of drug paraphernalia, you are also facing charges of drug possession, which means a different set of penalties. Contact Arnold Law to receive the legal defense necessary to defend your rights and protect your future when facing drug charges. A conviction of these charges will impact your future and opportunities for employment or education.
Defense Against Drug Paraphernalia Charges in Florida
There are two defense levels for fighting charges of drug paraphernalia in Florida.
- Challenging the police conduct and whether or not the search and seizure was performed legally when evidence was obtained
- Challenging the factual assertions of the prosecution that you were in ‘possession’ of paraphernalia as defined under Florida law
With the first challenge in a drug paraphernalia charge, it will be determined whether or not the police officials conducted a lawful search and arrest in your case. If they were not within the law or infringed on your rights, it can be grounds for filing a motion to suppress the evidence. If this motion is granted, all evidence obtained through the unlawful police activity will be excluded from your case. If the State cannot use this evidence, there is a good chance they will no longer have a case against you. You will want the experience of Arnold Law working with you on these charges to determine if this challenge will work on your case.
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Illegal Search and Seizure
The 4th Amendment of the United States Constitution protects you from unreasonable search and seizures by law officials. The legality of the search and seizure is a significant factor in any criminal case. If it is proven the search is not legal, any evidence they find cannot be used against you in a court of law.
The 4th Amendment states you have the right to be secure in your papers, house, and person against any unreasonable search and seizure. This right cannot be violated, and there will be no warrant issued unless there is probable cause that supports by affirmation or oath, that you or your premise can be searched and the items seized.
This Amendment is to protect your privacy and rights from unreasonable governmental instructions. The police may only search if:
- They have obtained a warrant from the courts
- They can justify a search due to special circumstances that they did not need a warrant
- You give them your consent to search
The protection under ‘search and seizure’ applies only to cases where you had a legitimate expectation of privacy when the search was conducted. There is a two-part test set by the United States Supreme Court that determines whether or not you had a legitimate expectation:
- You really expected a degree of privacy
- Society as a whole would accept your expectations of privacy was reasonable. Social norms would generally accept this expectation as reasonable.
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Motion to Suppress
A motion to suppress is used to exclude evidence obtained by law officials that they intend to use against you to prove their case. This motion is used when evidence was obtained through governmental or police misconduct.
The courts will suppress illegally obtained evidence, which generally deters police from getting it illegally; however, there are still situations where their search can be challenged. Your attorney at Arnold Law can determine if a motion to suppress evidence being used against you falls under one of two categories:
- Motion to Suppress Warrantless Search or Seizure is the most common motion filed when police or government officials conduct a warrantless search and seizure of your person, papers, or premise. This search and seizure would violate your 4th Amendment rights.
- Motion to Suppress Statements is used when you make a statement or confession to law officials without having been given a 'right to remain silent.' It is considered coercion if you are not read your rights before you speak to the police or other law enforcement agent.
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Miranda Rights- Right to Remain Silent
Law enforcement officials are required to read you your rights when they arrest you or hold you without the freedom to leave. Once you are read these rights, you should decline to speak about your situation and request to contact Arnold Law for an attorney.
One of the biggest mistakes a person can make when pulled over or detained by law officials is to make spontaneous statements. A spontaneous statement is one made before you are read your rights or after, and they can be used against you in court regardless of other statements that might be thrown out due to illegal conduct on the police part.
Other defense strategies are possible on drug paraphernalia charges that allow your attorneys at Arnold Law to challenge the sufficiency of proof being presented by the prosecution. Examples of ‘factual’ defense strategies against these charges include:
- Were you the only person in the vehicle or dwelling at the time
- Did you have exclusive possession of the evidence being used against you
- There are cases where drug paraphernalia is considered ‘temporary possession.’ This possession was transitory, momentary, or temporary as the true owner asked you to hide or hold the items during a police encounter. If you are not considered the true owner or the one who had complete dominion and control over the paraphernalia, you cannot be considered in legal possession.
- Did the police find the evidence on your person, or was it in a location that multiple person’s had access to
- Were you driving the vehicle at the time evidence was obtained, or did you have the authority or control over the dwelling where evidence was seized
- Can the police or prosecution prove you had knowledge that the paraphernalia was present at the location where it was found
- Were you aware of what the paraphernalia was and how it was used
- Does the paraphernalia in question have a dual purpose use
- Was there any residue found on the paraphernalia to prove its use in illegal drug use
- Paraphernalia was found as a result of responding to ‘overdose’
- If a person is experiencing a drug-related overdose and requires medical attention, or if a person is helping someone who requires medical attention, they are immune from prosecution for having possession of drug paraphernalia. If it is proven the paraphernalia was discovered due to the response of an overdose situation and the need for medical care, that evidence cannot be used against you.
These are some of the common defense strategies used successfully in fighting the charge of drug paraphernalia. Your attorney at Arnold Law will review your case and determine if one of these challenges apply to your case, or if one of many other strategies will work better in reducing or dismissing your charges.
When Caught With Illegal Drugs and Drug Paraphernalia
When a person is caught with illegal drugs, they often face charges of drug paraphernalia possession, as well. Drug paraphernalia can carry serious criminal penalties in a lot of jurisdictions for merely having it in your possession.
Most states throughout the country treat drug paraphernalia possession as a misdemeanor offense, which means you will face no more than one year in jail. Federal law charges drug paraphernalia possession as a felony, which comes with a penalty of up to three years in prison. These charges usually result when one attempts to transport or sell paraphernalia on the internet, or take across state lines. Federal laws don't apply to possessing or purchasing the paraphernalia.
In the State of Florida, possession of illegal drugs is defined as holding the substance for personal use. Drug possession is an offense by someone who has not manufactured, distributed, or sold illegal drugs. In Florida, the law recognizes drug possession as either actual possession or constructive possession. These rules are the same as applied for having drug paraphernalia.
Chapter 893, under the State of Florida Statutes, defines drug possession, and the laws under this statute are aimed at limiting the possession and use of illegal substances. Controlled substances include LSD, meth, ecstasy, heroin, and even certain prescription medications such as oxycodone and fentanyl.
Marijuana is allowed for medical use but is still classified as a Schedule One drug at Federal levels and an illegal substance. In November of 2016, Florida passed Amendment 2 that allows for the cultivation and use of medical marijuana for patients who qualify for use. This law does not, however, give everyone carte blanche for having possession of it. A person must apply for a card that states they are medically allowed to use marijuana. The card has limits on how much a person can purchase or possess to make sure medical marijuana is not abused.
If you do not have a card or a prescription for medications, you can be charged with either a misdemeanor or a felony under Florida law. The amount of drugs discovered in your possession, as well as the type of drug you have, determines whether felony or misdemeanor charges will apply to your case. One factor to keep in mind is if you are in a particular area such as a school or daycare center when you are arrested for possession, you may face steeper punishments that could include mandatory prison time. You will need the experienced help from Arnold Law if you are facing these charges. Drug charges can impact your future and your ability to obtain employment, so that you will want a strong legal defense against these charges.
Find Help For Drug Paraphernalia Charges Near Me
Drug paraphernalia charges can be serious and have a significant impact on your future. Contact Arnold Law at 904-264-3627 for help in fighting these charges and protecting your rights and future. We have extensive experience in the Florida courts and fully understand the laws and are able to build you a strong defense against these charges.
