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Drug Paraphernalia Possession

Reading the Florida Statute, it is apparent that many household objects can be used as drug paraphernalia. Mere possession of these household objects does not subject someone to criminal charges, but when these objects are used or modified for the ingestion, injection, or inhalation of illegal narcotics, the possession of these objects becomes criminal. Each drug paraphernalia possession case encompasses circumstances and factors regarding use of objects. To prove the crime of Use or Possession of Drug Paraphernalia, the State Attorney must prove beyond a reasonable doubt that the criminal suspect used or had in his or her possession with intent to use drug paraphernalia, and that the criminal suspect had knowledge of the presence of the drug paraphernalia. To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means that the paraphernalia is in the hand of or on the person, the paraphernalia is in a container in the hand of or on the person, or the paraphernalia is so close as to be within ready reach and is under the control of the person. Mere proximity to paraphernalia is not sufficient to establish control over that paraphernalia when it is not in a place over which the person has control. Constructive possession means the paraphernalia is in a place over which the criminal suspect has control, or in which the criminal suspect has concealed it. In order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the criminal suspect does not have control, the State must prove the criminal suspect’s (1) control over the controlled substance and (2) knowledge that the controlled substance was within the criminal suspect’s presence. Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of paraphernalia, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of paraphernalia, knowledge of its presence may not be inferred or assumed. 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, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived, kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances, isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance, testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances, scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances, diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in cutting controlled substances, separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis, blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances, capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances, containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances, hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body, or objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls, water pipes, carburetion tubes and devices, smoking and carburetion masks, roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand, miniature cocaine spoons, and cocaine vials, chamber pipes, carburetor pipes, electric pipes, air-driven pipes, chillums, bongs, ice pipes or chillers. In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia, including statements by an owner or by anyone in control of the object concerning its use, the proximity of the object, in time and space, to a direct violation of this act, the proximity of the object to controlled substances, the existence of any residue of controlled substances 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 persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia, instructions, oral or written, provided with the object concerning its use, descriptive materials accompanying the object which explain or depict its use, any advertising concerning its use, the manner in which the object is displayed for sale, 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 ratio of sales of the object or objects to the total sales of the business enterprise, the existence and scope of legitimate uses for the object in the community, or expert testimony concerning its use. Knowledge of the illicit nature of the controlled substance is not an element of the offense of Drug Paraphernalia Possession. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. The criminal suspect may raise this affirmative defense. However, the jury is permitted to presume that the criminal suspect was aware of the illicit nature of the controlled substance if it finds that the criminal suspect was in actual or constructive possession of the controlled substance. If from the evidence the jury is convinced that the criminal suspect knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, the jury should find the criminal suspect guilty. If the jury has a reasonable doubt on the question of whether the criminal suspect knew of the illicit nature of the controlled substance, the jury should find the criminal suspect not guilty. If you have been charged with Drug Paraphernalia Possession, it would be advantageous to contact a Fort Lauderdale Drug Paraphernalia Possession Attorney who will protect your rights and defend you in criminal court against the charges of the State Attorney. Kenneth P. Hassett is a Fort Lauderdale criminal defense attorney who practices in Miami Dade County, Fort Lauderdale, and Broward County. He has profuse experience in criminal defense work and has been in practice since 1991. If you have a criminal charge of Drug Paraphernalia Possession in Miami Dade County, Fort Lauderdale, or Broward County, contact criminal defense attorney Kenneth P. Hassett 24 hours per day for an immediate free consultation to discuss your rights as the criminal defendant.

893.145 “Drug paraphernalia” defined.

893.146 Determination of paraphernalia.

893.147 Use, possession, manufacture, delivery, transportation, or advertisement of drug paraphernalia.

Disclaimer

The information on this page does not represent legal advice. Florida Statues obtained from Online Sunshine, www.leg.state.fl.us, the official site of the Florida Legislature. Because the law is continually changing, some of the provisions contained herein may be out of date. It is always wise to seek counsel from an experienced criminal attorney like Kenneth Hassett.

If you have been charged as an Accessory After the Fact or a Principal in the First Degree to a criminal offense in Broward or Miami-Dade County, call Criminal Defense Attorney Kenneth P. Hassett.