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Possession of Drug Paraphernalia

June 8, 2015

In Florida, drug possession a crime and the possession of drug paraphernalia is also unlawful. A defendant may be charged with this crime by itself, or possession of paraphernalia charges may be brought in conjunction with other drug possession or sale charges.

What Is Paraphernalia?

Florida law defines drug paraphernalia as any equipment, products, or materials intended for use with a controlled substance, whether for cultivating, manufacturing, processing, packaging, storing, transporting, injecting, inhaling, ingesting, or anything else. Paraphernalia may include pipes, roach clips, bongs, rolling papers, syringes, scales used to weigh drugs, blenders, containers used to store or compound drugs, and any other materials used in conjunction with drugs.

What is Possession?

Under this law, possession may be either actual or constructive. Actual possession means that the offender has the paraphernalia on his or her person, or within easy reach and under the offender’s control. Constructive possession, on the other hand, means that the paraphernalia is not immediately reachable, but is in a location where the defendant has concealed it or has control over it.

The possession of drug paraphernalia is a first-degree misdemeanor, punishable by any combination of:


There are several possible defenses to the offense of possession of drug paraphernalia. The defense of constructive possession applies if more than one person had access to the place where the paraphernalia was located. Then, the prosecution must show that the defendant had both:

  • Knowledge of the paraphernalia’s presence
  • Dominion and control over the paraphernalia

For example, if the defendant and a friend are in the friend’s car, and the paraphernalia is in the glove box, the prosecution would have to prove that the defendant knew that the paraphernalia was in the compartment in order to convict.

Another possible issue is whether any evidence resulted from an illegal search or seizure. Sometimes, law enforcement officers exceed their authority in searching a person, house, or vehicle, or coerce a person into consenting to a search. If this is the case, an illegal search has been performed and the evidence resulting from the search is not admissible in court and so cannot be used against the defendant.

The overdose defense is included in Florida’s statutes and provides protection in the event that a person overdosed on drugs and needs medical assistance. In that case, the person who overdosed and the person calling for medical help are immune from prosecution if the evidence was gathered as a result of the call for help.

The defense of temporary possession is available when a person temporarily takes possession of the drug paraphernalia. The possession must have been in the presence of the owner of the paraphernalia and solely for the purpose of testing the drugs prior to purchase. In that case, the defendant is not deemed to have taken legal possession of the paraphernalia and cannot be convicted of possession.

Drug charges are serious offenses in Florida, but an attorney can help you evaluate your options, including any possible defenses. If you have been charged with a drug crime, please contact West Palm Beach criminal defense attorney William Wallshein online, or at 561-533-1221, for a free initial consultation.

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