In order to be found guilty of the crime of possession of drug paraphernalia the prosecution must prove that the defendant was in possession of a device, instrument, or paraphernalia used for smoking or injecting narcotic or dangerous drugs. However, conviction for this crime does not require that the paraphernalia was actually used by the accused in drug activity.
Each possession case is governed by its own facts. The two major issues for the prosecution is whether the defendant was in actual possession of the paraphernalia, and whether the item possessed is in fact drug paraphernalia.
An accused is deemed to be in possession if he has possession of the item on his body or property. For example if the item is found in the accused pockets, backpack, purse or car, then the accused is in possession. However, if the item is found around the accused, but not in the accused actual possession, the issue of possession becomes complicated. For instance if the illegal item is found on the ground next to the defendant, the prosecution must prove that the defendant had constructive possession of the item. Courts and states vary on what constructive possession is and how it can be proven. Some courts require that the prosecution prove that the accused had control over the illegal item; other courts require proof that the defendant had actual possession of the item at sometime. In either case, proving constructive possession can be hard to do.
Additionally, the prosecution must prove that the accused knew that he was in possession of the illegal item. Therefore, if an item is found in the defendant’s possession and it was placed there without the defendant’s knowledge, he cannot be found guilty of this crime.
The prosecution must also prove that the item recovered is drug paraphernalia. An item only qualifies as drug paraphernalia if it has been used, intended for use or designed for use with a controlled substance. In determining whether accused has possessed drug paraphernalia, the court is authorized to consider not only the nature of the object, but its proximity to controlled substances, or imitation controlled substances. For example, if the police find a hypodermic needle in an accused home, which also contains heroin, it is more likely the court will find the needle to be drug paraphernalia. On the other hand, if the accused is in possession of a hypodermic needle, but no drugs are around, the court may find that the needle was not intended for drug use. The courts have found that possession of balance scales and hypodermic needles are not controlled paraphernalia, absent other factors, such as possession of narcotics.
The prosecution is required to prove all elements of all crimes beyond a reasonable doubt. As such, any question regarding whether the defendant actually possessed the illegal item and whether the item is in fact drug paraphernalia, can show that reasonable doubt exist in the case.
If a defendant is found guilty of this charge, punishment can range from a fine to incarceration in county jail for up to a year.