Possession of Drug Paraphernalia in Florida

Possession of Drug Paraphernalia is a First Degree Misdemeanor in Florida.

Under Florida Statute 893.147(1), the crime of Possession of Drug Paraphernalia is committed when a person possesses any item that is used, intended to be used, or designed to be used as “Drug Paraphernalia.”

Drug Paraphernalia

Drug Paraphernalia is defined as any item used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, conceal, inject, ingest, inhale, or otherwise introduce an illegal or controlled substance. [1]

What Qualifies as Drug Paraphernalia

In determining whether an item qualifies as drug paraphernalia, courts consider the proximity of the item to any controlled substances, the existence of residue on the item, whether the item can be used for legitimate purposes, and expert testimony concerning the item’s use. [2]

For example, the presence of even a minuscule quantity of drug residue on an item is sufficient evidence to prove the item is Drug Paraphernalia. [3] But if the alleged paraphernalia tests negative for drug residue, the prosecutor must introduce other evidence to demonstrate the item was intended to be used for an illicit purpose. [4]

Penalties for Possession of Drug Paraphernalia

In Florida, the crime of Possession of Drug Paraphernalia is a First Degree Misdemeanor and punishable by up to one (1) year in jail, one (1) year of probation, and a $1,000 fine.

A judge may sentence a person convicted of Possession of Drug Paraphernalia to probation, but may also impose a sentence up to the statutory maximum of one year in jail.

Defenses to Possession of Drug Paraphernalia

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, specific or common defenses to the crime of Possession of Drug Paraphernalia are:

• Constructive Possession
• Illegal Search and Seizure
• Overdose Defense
• Temporary Possession

Constructive Possession

If the drug paraphernalia was found in a place where more than one person had access, the prosecutor would have to comply with the law of constructive possession, which requires the prosecutor to prove the following two elements before you can be convicted of Possession of Drug Paraphernalia: [5]

1. Knowledge of the Drug Paraphernalia’s presence;
2. Dominion and control over the Drug Paraphernalia.

Below are scenarios where it can be argued the prosecutor could not meet their burden of proving constructive Possession of Drug Paraphernalia.

Scenario 1: You were stopped while driving a friend’s car and police find drug paraphernalia in the glove box, they would be unable to convict you of Possession of Drug Paraphernalia unless they had some proof that you knew the drug paraphernalia was present.

Scenario 2: You were driving your car, had a friend with you, and your friend places his drug paraphernalia at his feet. The police then stop you, see your friend’s drug paraphernalia, and arrest both of you. They should be unable to convict you of Possession of Drug Paraphernalia because even though you knew the drug paraphernalia was present, your friend is the only person who exercised dominion and control over it.

Illegal Search and Seizure

More often than not, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search; or they may coerce a person into agreeing to a search. If we can prove that either instance occurred, the courts will suppress the resulting evidence as having been illegally obtained.

Other suppression possibilities that may present themselves are: if law enforcement obtained a search warrant in bad faith or if you were arrested without probable cause.

Overdose Defense

Any person who is experiencing a drug-related overdose and needs medical assistance, or a person assisting the person that needs medical assistance, is immune from prosecution for Possession of Drug Paraphernalia if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. [6]

Temporary Possession

The defense of temporary possession can be raised where a person takes momentary, temporary, or transitory possession of drug paraphernalia from the true owner. Under such circumstances, the person is not considered to be in legal possession of the drug paraphernalia because the person never exercised complete dominion and control over the drug paraphernalia. [7]

Examples of temporary possession are when a person is handed drug paraphernalia by the true owner and asked to hide it during a police encounter, such as a traffic stop; or when holding drug paraphernalia in the presence of a drug dealer for the sole purpose of verifying or using the drug paraphernalia to sample a drug prior to purchasing it; or when passing the drug paraphernalia from the owner to a third person.

Contact Criminal Defense Lawyer Richard Hornsby

If you have been charged or arrested with the crime of Possession of Drug Paraphernalia in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer Richard Hornsby today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

1. Florida Statute 893.146
2. Chandler v. State, 185 So. 3d 1286 (Fla. 5th DCA 2016)
3. Nixon v. State, 680 So. 2d 506, 507 (Fla. 1st DCA 1996)
4. T.E.D. v. State, 627 So. 2d 118 (Fla. 5th DCA 1993).
5. GG v. State, 84 So. 3d 1162 (Fla. 2nd DCA 2012)
6. Florida Statute 893.21
7. Campbell v. State, 577 So. 2d 932 (Fla. 1991)