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Understanding the Florida Crime of Possession of Drug Paraphernalia

Posted by on in Florida Criminal Law
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As a criminal defense attorney for more than 25 years in a college town (Gainesville, Florida), I’ve represented hundreds of individuals charged with the crime of possession of drug paraphernalia.  Most of these individuals have been college students or otherwise law abiding citizens.  Many are stunned to learn that the maximum penalty for mere possession of drug paraphernalia in the State of Florida is one year in jail and a $1000 dollar fine, a first degree misdemeanor. See Florida Statute 893.147.  Even more surprising for many is how vague and broad the statute is.  The purpose of this blog is to educate the reader about the definitions and applicability of Florida’s drug paraphernalia statute.

Florida Statute 893.145 defines drug paraphernalia as “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 ...”   The statute then goes on to extensively list numerous specific examples of potential drug paraphernalia, including, “scales,” “bowls,” “spoons,” “envelopes,” “pipes,” “bongs,” “balloons,” “soda bottle” and “duct tape”.  See Florida Statute 893.145.  The statute also uses broad general terms like “containers” that could include many different items, such as an ordinary plastic baggy.

The most common type of drug paraphernalia that individuals are arrested for are objects used to store, contain or ingest marijuana.  When the police find rolling papers near cannabis, they often charge an additional count of possession of drug paraphernalia.   When the police find marijuana contained in a plastic baggy, it is not unusual for the individual to be charged with possession of cannabis and possession of drug paraphernalia for the plastic bag.  When pot is find near a pipe, the individual is commonly charged with possession of marijuana and possession of drug paraphernalia for the pipe.       

How Do Prosecutors Prove that a Common Household Item is Actually Drug Paraphernalia?

One of the most important elements in proving a possession of drug paraphernalia charge is that the object was used or intended to be used to contain, store or ingest a controlled substance.  Florida Statute 893.146, “Determination of Paraphernalia,” provides broad guidelines for police, prosecutors and jurors to determine whether or not a particular item is drug paraphernalia or not.  Those factors include proximity of the object to controlled substances, the existence of residue of controlled substances on the object, statements of anyone in control of the object concerning it’s use and expert testimony about the item.  Obviously, if marijuana is found inside a plastic baggy, it is pretty easy for a prosecutor to make the argument that the plastic baggy is being used to contain a controlled substance and is, therefore, drug paraphernalia.

Does the Drug Paraphernalia Have to be in One’s Actual Physical Possession to be Found Guilty?

Florida law does not require that drug paraphernalia has to be in ones actual possession.  Possession under Florida law includes “actual possession” or “constructive possession”.  Actual possession means the paraphernalia is in the hand of or on the person.  Actual possession also includes paraphernalia that is so close as to be within the ready reach and under the control of the person.  Mere proximity to paraphernalia is not sufficient to establish control over 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 person has control or in which the person has concealed it.  In order to prove constructive possession in a place over which a person does not have control, the prosecutor must prove that the person had control over the paraphernalia and knowledge that the paraphernalia was there.   If a person has exclusive possession of paraphernalia, either actual or constructive, knowledge of it’s presence is legally inferred or assumed.  Thus, if you are alone in a vehicle that contains paraphernalia, the law presumes that you have knowledge and ability to control.  If a person does not have exclusive possession of the paraphernalia, knowledge of it presence may not be inferred or assumed.

Drug paraphernalia may also be possessed by more than one person at the same time under Florida law.  Under Florida law, possession by more than one person is called "joint possession" [no pun intended].  Joint possession is when two or more persons jointly possess an article, with the ability to exercise control over it.  The law prohibits possession, even if the item is owned by another person.  While ownership may help prove that one is in possession, ownership is not required to be proved to establish mere possession.  One can posses something that one does not own.

What If I am Charged with Possession of Drug Paraphernalia?

If you are charged with the crime of possession of drug paraphernalia, you should consult with an experienced criminal defense attorney in the jurisdiction where you where charged.  Under some circumstances there are viable defenses to the crime of possession of drug paraphernalia even if one is technically guilty.  Also, an experienced criminal defense attorney should also be knowledgeable about the existence of potential diversion programs that could result in the charge being dismissed under some circumstances.  For more information on how to go about selecting a qualified and experienced attorney read this article: Finding the Right Attorney for You.

Michael Buchanan is a practicing criminal defense attorney in Gainesville, Florida, with more than 25 years experience defending people accused of criminal misconduct. He is a former president of the Eighth Judicial Circuit chapter of the Florida Association of Criminal Defense Lawyers. He is a member of the Florida Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers. Read detailed professional biography here.