SHORSTEIN, LASNETSKI,& GIHON
helps people charged with
POSSESSION OF DRUG PARAPHERNALIA
Our Jacksonville criminal lawyers have handled many cases involving possession of drug paraphernalia. This is often an additional charge to a substantive drug offense, but not always. A drug paraphernalia charge can have serious negative consequences, but those consequences can often be avoided through negotiation and/or pretrial diversion. Call SLG's Jacksonville criminal attorneys today for a free consultation on your drug paraphernalia case.
What is Drug Paraphernalia?
Drug paraphernalia in Florida is defined in Florida Statute Section 893.145.
"...all equipment, products, and materials of any kind which are used, intended for use, or designed for converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance..."
Typical examples of drug paraphernalia include baggies with drug residue, scales, syringes, pipes, rolling papers, balloons, etc. Whether an item is drug paraphernalia is ultimately a question for the jury. The more evidence there is to tie controlled substances to the paraphernalia, the more likely the State would be able to prove that the item was "drug" paraphernalia, as opposed to an innocent everyday object. For example, if a spoon is found in a kitchen drawer with other spoons, it would be difficult to prove that the spoon was drug paraphernalia. However, if a spoon were located on a nightstand next to a baggie of heroin and syringe and the spoon contained drug residue, the evidence would be much stronger that the spoon was drug paraphernalia.
Florida Statute Section 893.146 lays out some factors a judge or jury shall consider in determining whether an item is drug paraphernalia. Those factors include statements made about the use of the item, how close the item is to controlled substances, drug residue on the item, evidence of the person's intent to use the item, item instructions, descriptive materials explaining the item's use, and more.
What is Possession of Drug Paraphernalia?
In Florida, it is a crime to use or to possess drug paraphernalia. Most drug paraphernalia cases involve possession. Possession can be actual or constructive. Actual possession means that the person possesses the item on their person (i.e. in their hand or pocket or in a container that is in their hand) or within ready reach and under the control of the person (i.e. under their seat, within arms reach, etc.). Constructive possession means that the person has knowledge of the presence of the item, and has control over the item. More than one person can have constructive possession of an item. For example, most items in a married couple's household would be in the constructive possession of both husband and wife, whether they are home at the time or not. So, if the police executed a search warrant on a home and located needles in plain view in the joint bedroom, arguably both husband and wife could be charged with constructive possession of drug paraphernalia because they both have control over the home, the bedroom and items within.
Is possession of drug paraphernalia a felony in the State of Florida?
No. In Florida, a possession of drug paraphernalia charge is considered a first degree misdemeanor. A first degree misdemeanor is punishable by up to one (1) year in jail and up to a $1,000 fine.
Can you go to jail for possession of drug paraphernalia?
As mentioned above, you can go to jail for up to a year if convicted of possession of drug paraphernalia, however, that is extremely rare in Jacksonville and throughout the State of Florida. In fact, it is very rare to go to jail at all for a first time arrest. Jail time is typically reserved for people with substantial criminal records or who have additional charges that are more serious than possession of drug paraphernalia. If a person has limited or no prior criminal record and no additional charges, it is typical for the case to be referred to a pretrial diversion program or to be resolved for a withhold of adjudication, probation and/or court costs.
Does possession of drug paraphernalia go on your record?
Yes. Any arrest will go on a person's criminal record. A criminal record can be sealed or expunged in very limited circumstances. If a person receives a withhold of adjudication or the case is dropped and has no other criminal convictions for any offense, then sealing or expunction may be available.
What are the defenses to Possession of Drug Paraphernalia?
Motion to Suppress - A common defense strategy is to file a motion to suppress the drug paraphernalia. Many drug paraphernalia cases involve a traffic stop or a search by a police officer where the police officer discovers paraphernalia as a result of that search. Every individual has a constitutional right to be free of unlawful searches and seizures. The government has the burden to establish that a warrantless search was constitutionally valid. A defense attorney can file a motion to suppress the evidence and seek a suppression hearing where the government would have to present evidence to the court. The defense attorney can also present evidence. If the judge believes that the search or seizure was unlawful, the judge can suppress the evidence meaning that it cannot be used against you.
Possession - The State must prove that the charged individual possessed the drug paraphernalia. A typical example is when law enforcement officers conduct a traffic stop, there are multiple people in the vehicle and law enforcement officers find drug paraphernalia located somewhere inside the vehicle. Because the State must prove each element beyond a reasonable doubt, they must prove that the person charged possessed the drug paraphernalia. SLG's criminal lawyers thoroughly investigate who was in the vehicle, where was each person located, where was the paraphernalia located, who's vehicle was it, what evidence is there related to how long the paraphernalia had been in the vehicle, what was found near the paraphernalia, what statements were made by each person about the paraphernalia, and more. The answers to these questions can help form a defense to negate the State's evidence that the person possessed the paraphernalia.
Drug Paraphernalia - The State must prove that the item was drug paraphernalia. Many times, the item is an otherwise innocuous item, like a spoon, baggie, or scale. SLG's criminal attorneys investigate the facts surrounding the paraphernalia by determining where the item was located, what was located near the item, how is the item typically used, what evidence is there regarding how long the item was there, and more. An item that the State claims is drug paraphernalia may be an innocent everyday item, not connected to controlled substances. The State bears the burden of proving that the item is "drug paraphernalia."
What other drug paraphernalia crimes are there in Florida?
In addition to use and possession of drug paraphernalia, there are other Florida criminal offenses related to drug paraphernalia. It is against the law in the State of Florida to manufacture or deliver drug paraphernalia. This offense is a 3rd degree felony punishable by up to five (5) years in prison. It is also against the law for any person 18 years of age or older to deliver drug paraphernalia to any minor under 18 years of age. This offense is a second degree felony punishable by up to fifteen (15) years in prison. It is also illegal to transport drug paraphernalia, which is a third degree felony punishable by up to five (5) years in prison. It is unlawful to advertise drug paraphernalia and is a first degree misdemeanor punishable by up to one (1) year in jail. It is unlawful to sell drug paraphernalia at retail and is a first degree misdemeanor punishable by up to one (1) year in jail.
Criminal allegations can have very serious consequences, whether the allegations are true or not.
If you have been accused of Possession of Drug Paraphernalia in Jacksonville,
Shorstein, Lasnetski, & Gihon
Experienced Jacksonville Drug Paraphernalia Attorneys904-642-3332 (Jacksonville)or contact us online.