Possession of Drug Paraphernalia

By far some of the most common drug-related arrests in Florida are for possession of drug paraphernalia.

Despite the general thinking that this is a relatively “minor” crime, the reality is a conviction can result in significant consequences, even for first-time offenders.

Broward County defense lawyers at The Ansara Law Firm are experienced in challenging these charges by attacking the “possession” requirements, as well as other factual assertions made by prosecutors – including the legality of law enforcement conduct resulting in search or seizure of key evidence.

Our team possesses expansive and practical knowledge of the Fourth Amendment, and this is often directly applied to possession of drug paraphernalia cases, specifically with regard to improper search and seizure.

It’s important to seek quality legal representation because even though it is a misdemeanor of the first-degree, it carries a potential one-year maximum jail term, not to mention substantial fines, court costs and invasive and often expensive probation requirements.

The state defines the possession, manufacture, delivery, transportation, advertisement or retail sale of drug paraphernalia in F.S. 893.147.

These provisions make it illegal to use or possess with intent to use drug paraphernalia, manufacture or deliver drug paraphernalia, transport drug paraphernalia or to deliver drug paraphernalia to a minor.

Depending on the exact charge and nature of offense, the case may be prosecuted as a first-degree misdemeanor, a third-degree felony or a second-degree felony.

Drug paraphernalia is characterized as:

• Any material, product or equipment that is
• Designed to be used, intended to be used or is used
• In the injecting, ingesting, inhaling, analyzing, packing, repacking, storing, hiding, processing, preparing, testing, planting, growing, harvesting, converting, manufacturing or producing
• Any substance that is illegally-possessed or controlled

Full details on the type of material that may constitute drug paraphernalia are listed in F.S. 893.145. Some examples include:

• Hypodermic syringes or needles
• Kits for growing, manufacturing, processing or making drugs
• Adulterants and Diluents intended to cut controlled substances
• Scales and balances used in measuring and/or weighing controlled substances
• Water pipes (i.e., bongs) or other smoking devices

Even seemingly innocuous items like spoons, balloons, 2-liter bottles, duct tape, roach clips, hoses, tubes or plastic containers may be deemed “drug paraphernalia” if the intended use was as mentioned above.

A key component of these cases is the establishment of defendant’s possession of aforementioned item(s).

In Florida, there are two primary kinds of possession: Actual or Constructive.

Someone with actual possession of an item has it actually on their person or right within easy reach, under his or her control. Someone with constructive possession, meanwhile, might not actually have the paraphernalia, but has hidden it or has control over it.

There have drug paraphernalia possession cases in which a defendant did not have actual control over the items, but:

• At one point did have control over the items;
• Knew the items were within his or her presence.

There is also the possibility of joint possession, but in cases where a vehicle or residence is jointly owned or the vehicle is owned or operated by someone else or the items are at a location where multiple people are, prosecutors may have a tougher time proving constructive possession.

Penalties for drug paraphernalia crimes will depend on the exact nature of the offense, as well as defendant’s prior criminal conviction.

Generally, though, possession of drug paraphernalia is a first-degree misdemeanor, which carries the following penalties:

• Maximum 1 year in jail
• Maximum 1 year probation
• Maximum $1,000 in fines

That probation may be accompanied by random drug testing requirements, as well as orders to attend drug counseling and/or treatment.

If a person doesn’t just merely possess, but manufactures, delivers or transports drug paraphernalia, it’s considered a third-degree felony, punishable by up to 5 years in prison, plus additional probation and fines.

Drug paraphernalia crimes are increased to a second-degree felony if delivery of the paraphernalia was made to someone under the age of 18. Maximum penalties are then increased to 15 years in prison.

Our Fort Lauderdale criminal defense team will of course analyze whether police followed proper search and seizure methods, filing a motion to suppress wherever there is evidence they did not.

Additionally, we will look closely at the elements of the possession charge to determine whether the evidence there is insufficient. That may help us to negotiate a favorable plea deal or possibly a reduction or dismissal of charges.

Another element we may consider is the “overdose defense.” This is a protection afforded individuals who seek help for someone in need of medical assistance for a drug-related overdose. If the items are found in relation to defendant seeking that assistance, he or she will be immune from prosecution.

There is also the potential for a “temporary possession” defense. This is when an individual, in the presence of the owner of the paraphernalia, takes temporary possession for the purpose of testing or verifying the drugs prior to purchase. That is not enough to prove “possession,” courts have ruled.