WHAT IS DRUG PARAPHERNALIA IN TEXAS?
The Texas Health and Safety Code § 481.002(17) defines drug paraphernalia as
equipment, a product, or material that is used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing a controlled substance in violation of this chapter or in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter.
Section 481.002 goes on to list all the equipment, products, or materials that the term drug paraphernalia legally references. Any item that is used or intended to be used to manufacture, cultivate, grow, consume, or distribute illegal drugs is considered drug paraphernalia. This can cover anything from plastic Ziploc bags to combustion devices. Some of the more common instruments include the following.
- Plastic bags
- Planting pots
- Smoking pipes: glass, metal, or wooden
- Bongs
- Vaporizers or combustion devices
- Syringes
- Scales
- Herb or coffee grinders
- Spoons or beakers for preparing injectable drugs
- Tubes used for insufflating (snorting) powdered drugs
- Rolling papers
- Roach clips
In some cases, paraphernalia cases cannot be charged because the circumstances do not permit it. But in many cases — if the police officer has reasonable suspicion that you are either consuming or selling drugs regardless the absence of drugs on your person, then drug paraphernalia charges can be filed legitimately.
WHEN IS IT ILLEGAL?
In some cases, paraphernalia cases cannot be charged because the circumstances do not permit it. You may have an herb grinder, but that could be used for any kind of herb, like cilantro or rosemary, in addition to marijuana. If there is no suspicion that you are making, selling, or consuming drugs with the products found in your possession, then an arrest and subsequent charge of drug paraphernalia are not warranted. Many items used for drugs have legitimate purposes, too.
But in many cases — if the police officer has reasonable suspicion that you are either consuming or selling drugs regardless the absence of drugs on your person — then drug paraphernalia charges can be filed.
Drug paraphernalia can fall into a legal gray area, especially because smoke shops and convenience stores all over Texas sell these items. Things like rolling paper, mini vases, and water pipes can be used legally to consume tobacco.
Drug paraphernalia, therefore, is legal when it is used for legal purposes like smoke tobacco or rolling cigarettes, but not legal when used in combination of illicit drugs. The problem for the police officer is identifying for which purpose you possess the paraphernalia. It is often a judgment call, one that an experienced criminal defense lawyer like Jon Robinson can successfully challenge at court.
WHAT ARE THE PENALTIES?
If you are caught with the possession of drug paraphernalia — a Class C misdemeanor — and are subsequently convicted of it, a first-time offender can expect to be fined $500 and possibly be ordered to community service.
Punishment for repeat offenders jumps. A second or third offense for possession of drug paraphernalia can be upgraded to a Class B or A misdemeanor, depending on the circumstances, and that could mean possible time in the county jail.
Selling drug paraphernalia is another story. A first-time offense for the same is a Class A misdemeanor, punishable by up to one year in county jail and a fine not to exceed $4,000. A subsequent offense for selling paraphernalia could mean a felony charge, punishable by 90 days or up to one year in state jail and a fine not to exceed $4,000.
If you are caught selling drug paraphernalia to minors — persons under the age of 18, a first-time offense is a state jail felony. You could receive a minimum of 1809 days or up to two years in state prison, and a fine not to exceed $10,000.
HOW DO YOU FIGHT A DRUG PARAPHERNALIA OFFENSE?
LEGAL PURPOSE
The drug paraphernalia, to be illegal, must have been in your possession for the purpose to make, sell, or consume an illicit controlled substance. Thus, the key to your defense is casting doubt or proving that the subject of the drug paraphernalia was not illegal drugs. If no illegal drugs were found on your person, then this defense is clear and cut. You could have been in possession of the paraphernalia for the purpose of smoking legal tobacco or sheesha (flavored tobacco).
If illegal drugs were found, then a more strategic defense is necessary — one that incorporates a comprehensive approach. The State must provide evidence to prove the object(s) is drug paraphernalia. To do so, the prosecutor will use any statements you made at the time of the arrest, proximity of the drugs to the object (alleged drug paraphernalia), any prior convictions related to the offense, and direct and circumstantial evidence of your intent to use the object for drugs.
For your defense, your experienced criminal defense lawyer will submit evidence that contradicts the State’s evidence and weakens its theory that the object is indeed drug paraphernalia. Lay testimony and community support can be strategically used.
LACK OF KNOWLEDGE
When the facts allow it, lack of knowledge can be used as a defense. Texas Health and Safety Code § 481.125 requires that you “knowingly or intentionally” use, possess, deliver, or manufacture the object for the purposes of illegal controlled substances. Without knowledge or intent, the offense is not committed. So, if drugs were found in the proximity of the alleged drug paraphernalia, an experienced criminal defense attorney may be able to show that these drugs were left behind by another person, whether it was a roommate, friend, or family member. As such, you — as the defendant — were unaware of its presence and had no intention of using either the drugs or the alleged drug paraphernalia.
The same theory can be used to show you weren’t even aware of the alleged drug paraphernalia.
CONSTITUTIONAL VIOLATIONS
An experienced criminal defense attorney will also challenge any constitutional violations that apply to your case. There are several different but common constitutional violations that often take place. Two examples involve Miranda rights and search and seizure.
- Your Miranda rights may have been violated. Statements you give to the police must be voluntary, not coerced. If you were not properly read your Miranda rights, or if you were tricked or intimidated into making a statement, then evidence flowing from these violations can be suppressed.
- You may have been searched improperly or a search warrant may have been improperly received. In either case, evidence flowing from the improper use of search warrants can be challenged and the court could be moved to suppress the evidence.
POLICE MISCONDUCT
Your experienced criminal defense attorney will inquire into other facts and circumstances of your case. If you were charged with any other drug crimes, the attorney may consider if there were any forensic or procedural flaws during and after the police investigation. This could involve anything from fingerprints analysis to computer analysis.
Your attorney should also consider any sloppy or improper work committed by the police. In Houston particularly, the police have been known to mishandle evidence, to tamper with it, to mislead witnesses, to make false statements, among other police misconduct.
SHOULD YOU TAKE A PLEA DEAL?
In many of these cases, too, the State or judge may offer first-time drug offenders a deal. This often happens when you have been caught with drugs in addition to the paraphernalia, like the plastic bag holding the controlled substance. The State or judge may allow you to plead down to a simple drug paraphernalia charge. Sometimes this may be to your benefit but remember: you will have a criminal record with a drug crime listed on it. That can do more harm than any short jail stint or fine can do to you.
Fighting the drug charges is your only way to ensure you have a chance at a clean slate, or to minimize the convictions already on a criminal record. There are always options an aggressive, smart, resourceful criminal defense attorney can do. Attorney Jon Robinson understands how the police, the prosecution, and the courts operate, and he uses this knowledge in combination with legal knowledge to build a strong defense that weakens the prosecutor’s case against you.
What so many people fail to remember is that if you go to trial, the State must prove beyond a reasonable doubt that you are guilty, and they must do so by satisfying very specific elements of the offense. This is not an easy task, and it’s made harder by an attorney who doesn’t settle but fights to protect your rights and opportunity for a second chance.