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Legal Issues In Paraphernalia Cases

Below are issues that often occur in paraphernalia cases.  If these issues are present in your case, a good criminal defense attorney may be able to get your case dropped or negotiate a favorable deal for you.

There is no residue on the alleged paraphernalia

If there is no residue of a controlled substance present on the object police are claiming is paraphernalia, the prosecutor may not have enough evidence to prove the case.

The alleged paraphernalia was not used for an illegal purpose

A pipe, syringe, scale, small plastic bag--all of these things have perfectly legal uses.  The prosecutor needs to have specific evidence that the defendant either used the object, or intended to use the object, for an illicit purpose. 

The paraphernalia was found as the result of an illegal search

Police must have a warrant, the person's consent, or probable cause before they can search.  If they do not have adequate legal grounds, then the evidence they found (here, the alleged paraphernalia) can be suppressed.  If it is suppressed, the state will not be able to use it as evidence against the defendant and the charges could be dropped.

The object was not found on the person and there were other people around

If the alleged paraphernalia was not found on the defendant, and there were others present, then the prosecutor needs to prove that the defendant was in "constructive possession" of the paraphernalia.  This is sometimes difficult--if not impossible--for a prosecutor to prove,  especially if there were no admissions made by the defendant.

The defendant has a prescription

If a person has a prescription for marijuana, then the pipe they use to smoke it with is not paraphernalia.  The same for a syringe: if a person has a medical condition like diabetes, the syringe they use for their injections is not paraphernalia. 

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What is paraphernalia?


The terms "narcotic equipment" and "paraphernalia" refer to the same thing: equipment or materials used to produce, conceal, or consume a controlled substance. 


Typical possession of paraphernalia charges usually involve pipes, bongs, and syringes.  However, sometimes innocent objects (like spoons, pieces of steel wool, or postal scales) can be charged as possession of narcotic equipment or possession of paraphernalia.


What is the punishment for paraphernalia?


A possession of narcotic equipment and paraphernalia charge is a first-degree misdemeanor punishable by up to one year in the county jail, up to one year of probation, or a combination of jail and probation not to exceed one-year total.  


How can I fight paraphernalia charges?


It can be difficult for a prosecutor to successfully convict a person for a  possession of narcotic equipment charge because the state must prove that the defendant intended to use the object as narcotic equipment or paraphernalia.  


In other words, the state has to have facts to indicate that the object was used or is about to be used, to produce, conceal, or consume a controlled substance.   A spoon, or straw, or syringe, for example, is not necessarily paraphernalia.  The prosecutor would need to have some facts (such as a narcotic residue left on a spoon) in order to be able to successfully argue that the object is in fact paraphernalia.


If the police did things wrong, the evidence can be suppressed

All constitutional law applies to paraphernalia cases.  This means that if an officer violated the constitution in the course of the investigation and arrest, the evidence related to the paraphernalia charge may be suppressed (thrown out of court) and as a result your case may be dropped. 


Defenses to Possession of Paraphernalia Cases


  • Constructive Possession

Constructive possession is often a big issue in drug possession and paraphernalia cases.  Many people charged with possession of paraphernalia have no idea about constructive possession and the cop investigating your case is under no obligation to tell you if this issue exists.

Basically, constructive possession is when narcotic equipment/paraphernalia is found somewhere other than on the defendant’s person and there are multiple people present (typically in a car or house).  Law enforcement will oftentimes arrest everyone present. However, and this is very important, not everyone charged and arrested can later be successfully prosecuted.

Constructive Possession Cases can be bad for prosecutors.

There are two additional things that a prosecutor needs to be able to prove in order to successfully prosecute a constructive possession case: 


(1) That the person had dominion and control over the paraphernalia, and 


(2) that the person had knowledge it was there. 

It is not enough that the person was simply close to the paraphernalia.  

It is not enough that the person was simply close to the paraphernalia. 


Being close to the paraphernalia is not enough.  There need to be specific facts to indicate that the person knew the paraphernalia was there (assuming it was not in plain view) and had the ability to it  (essentially that the paraphernalia was theirs to do what they please with).  


Oftentimes in constructive possession cases, absent an admission or confession of some sort, the state does not have ample evidence to successfully convict the person.


These are extremely fact specific cases (they often turn on the unique facts in your case).  This is one reason why it is important to have a criminal defense lawyer evaluate your case to determine whether there is a constructive possession issue present.


  • Illegal search and seizure


The law on what constitutes an illegal search and seizure is vast and complicated and only an experienced criminal defense attorney will be able to tell if you, in fact, were illegally searched or detained.


Some issues commonly seen are:

  • Bad vehicular stops


Such as when a car is stopped for a wrong reason or for a made-up reason.

  • Illegal detentions


These are very common and involve a person stopped and detained when law enforcement does not have the necessary reasonable suspicion or probable cause to stop and detain the person.

  • Illegal searches

When an individual’s person, belongings, vehicle, and/or home is searched illegally and without the necessary reasonable suspicion or probable cause.  


It takes a skilled criminal defense attorney who is up on the current state of the law to determine whether you were, given the specific facts of your case, illegally detained and searched.


  • Entrapment

Entrapment occurs when the police (or people working with the police) induce or encourage a person to commit a crime when the person was not otherwise predisposed to commit the crime in the first place.  

A person prosecuted for a crime will be acquitted (found not guilty) if the person proves that his or her criminal conduct occurred as a result of government entrapment.


  • Prescription Defense

A prescription essentially acts as a license allowing the individual to possess the substance  listed in the prescription.   If one has a prescription for insulin, for example, the syringes used with the insulin are not paraphernalia.   If you have ever had a prescription to a substance and you have later been arrested for possessing “paraphernalia” related to that substance, it is important to bring this to the attention of your attorney.  Oftentimes it will result in the prosecutor dropping the charges. 

Also, in Florida, it is not necessarily illegal for a person to hold a prescribed substance for someone else.  This commonly occurs in a caregiver situation, when it may be necessary for a person to hold a prescribed substance for someone else or to transport it from one place to another.


  • Overdose Defense

A person acting in good faith who seeks medical assistance (calls 911, helps get one to the hospital, etc.) for an individual experiencing, or believed to be experiencing, a drug-related overdose may not be arrested, charged, prosecuted, or penalized for a violation of drug possession offenses under Florida law.  


  • There are many other defenses available

Whether a defense is available to you will often turn on the unique facts of your specific case.  Please contact us and our lawyers will take the time to evaluate your case and determine what possible defenses are available.

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