What is Possession of Drug Paraphernalia?
The law states that a person cannot “use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest manufacture, compound, convert… pack, repack, store, contain conceal, inject, ingest, inhale or otherwise introduce into the human body a drug in violation of this chapter.
Basically, anything that is found to be with a drug that is not the drug itself can be considered paraphernalia.
- Baggies – most commonly are the very small baggies and can often be considered indicia of a sales charge as well
- Pipes Bongs
- Roach Clips
- Pill Bottles
- Mason Jars
- Tupperware Containers
- Metal Cans or Rigs
- Other objects intended to conceal drugs
Many of the above examples are legal products.
In order for a piece of equipment to be considered illegal drug paraphernalia there needs to be some substance found on or near the equipment that is illegal.
Many of these cases the officers will indicate in the report that there was “x” residue.
If there is only residue on a container and not a “useable quantity” then you cannot be charged with possession of the drug and will only be charged with possession of drug paraphernalia.
In almost all of the drug cases we see, Possession of Drug Paraphernalia is charged alongside of the underlying drug offense.
How is it determined to be Drug Paraphernalia?
There are certain factors that are used to determine whether or not something is or is not drug paraphernalia. The court will consider the following:
- Statements by the owner, or whomever is in control of the object
- Prior convictions – if you have had a prior conviction for Possession of Heroin and you are currently in control of a needle that police believe was used for a heroin charge – then this could be used against you.
- The proximity of the object to a violation of Chapter 34 drug offenses.
- The proximity of the object to drugs
- The existence of any residue of drugs on the object
- Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to person whom he knows, or should reasonable know, intend to use the object to facilitate a violation of this chapter
- Instructions, oral or written, provided with the object which explain or depict its use
- National and local advertising concerning its use; for example Is the object advertised at a local dispensary for the sole purpose of smoking marijuana, or is it a Zip Lock bag advertised at every local grocery store
- Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products
- Direct or circumstantial evidence of the ration of sales of the object to the total sales of the business enterprise
- The existence and scope of legitimate uses for the object in the community
- Expert testimony concerning its use
What is the penalty for Possession of Drug Paraphernalia Charges?
Possession of Drug Paraphernalia is a Class 6 Felony.
However, we often will see municipal jurisdictions, such as the City of Scottsdale, charge these crimes as “attempted” possession of drug paraphernalia. This will be considered a Class 1 misdemeanor.
This also means that the city, or municipality, will get the money for fines paid in regard to a possession of drug paraphernalia charge.
If convicted as a Class 6 Felony, you cold be given jail, probation, or prison if you have prior felony convictions. Below is the listed chart for sentencing purposes:
- The Judge can leave the Possession of Drug Paraphernalia as a Felony and sentence you accordingly
- The Judge can choose to not designate the charge as a Felony or a Misdemeanor and leave the charge “undesignated” pending your probation period. Depending on how you do on probation, the Judge has the discretion to later designate the charge as a misdemeanor or as a felony.
- The Judge can designate the charge as a misdemeanor and sentence you under the misdemeanor category.
How do you defend against Possession of Marijuana Charges?
The defense really depends upon the facts and factors in your underlying case. A very common defense is “The X in question is not mine” or that the State cannot prove the item is used for illegal drugs.
The “its not mine” defense is usually used when the drug paraphernalia found is in a common living spot. This can often be in a dorm room, a car, or other shared space that is not directly tied to you.
Another defense is trying to show that the item is not used for illegal drug use. In Arizona, with medical marijuana, there can be a much more difficult time showing that the item used was for an illegal purpose.
Will I really be going to jail for a Possession of Drug Paraphernalia Charge?
It really depends on your history. Generally speaking, no, we don’t see jail sentences imposed on simple Possession of Drug Paraphernalia charges.
Usually, we will see these designated as misdemeanors prior to trial.
The Prosecutor does this to avoid having a jury trial. If you have a felony charge, you are entitled to a jury trial. If the case is designated as a misdemeanor, you are entitled to a bench trial, or a trial by the judge.
If this happens, it is very unlikely that you will see jail time imposed as a condition of probation.
Can I get a possession of drug paraphernalia charge expunged from my record?
Technically no. Arizona still does not have expungement for these types of cases. However, you can file a motion to Set Aside the conviction and have that removed from your record.
This accomplishes many of the same goals that you might have when trying to expunge a record. However, the charges can still later be found. During this process, you can also request to have all of your rights restored, including your rights to own and carry firearms.