Possession of Drug Paraphernalia

What Florida Statute prohibits Possession of Drug Paraphernalia?

• § 893.147(1), Fla. Stat.

What is the maximum punishment for Possession of Drug Paraphernalia?

Possession of Drug Paraphernalia is a first-degree misdemeanor punishable by up to $1000 fine and up to 1 year in jail.

What does the State have to prove in order to convict a person of Possession of Drug Paraphernalia in Florida?

• Defendant knew of the presence of drug paraphernalia.
• Defendant used the drug paraphernalia or possessed the drug paraphernalia with intent to use it to:
  • Plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, a controlled substance; or inject, ingest, inhale, or introduce a controlled substance into the human body.

To prove the defendant “possessed drug paraphernalia,” the State must prove beyond a reasonable doubt that he or she a) knew of the existence of the drug paraphernalia and b) intentionally exercised control over that drug paraphernalia.

What is “control” over Drug Paraphernalia?

From Florida Jury Instructions: “Control can be exercised over drug paraphernalia whether the drug paraphernalia is carried on a person, near a person, or in a completely separate location. Mere proximity to drug paraphernalia does not establish that the person intentionally exercised control over the drug paraphernalia in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the drug paraphernalia or the present ability to direct its control by another.

Can Possession of Drug Paraphernalia be joint?

• Yes. It can be sole, or joint – more than one person can in possession of drug paraphernalia.

What is considered Drug Paraphernalia?

• Florida Statute §893.145, Fla. Stat. provides the definition.

From Florida Jury Instructions: “The term “drug paraphernalia” means 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, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance or a substance listed in § 877.111, Florida Statutes.”

How does this usually come up?

Most commonly this is a companion charge to Possession of Marijuana under 20 grams. The officers usually will issue a notice to appear for both, as the marijuana is kept in something: a box, a baggie, some sort of container. The state attorney’s office will usually also charge both as it gives them leverage to negotiate. They will frequently offer to drop the paraphernalia charge in exchange for a plea to Possession of Cannabis, but remember that this particular charge will cause a 6-month driver license suspension if there are convictions (adjudication of guilt).