What is Possession of Drug Paraphernalia?
A.R.S. § 13-3415 criminalizes the possession of drug paraphernalia in Arizona, and it is a class 6 felony offense. The definition of drug paraphernalia is so broad that nearly anything can be classified as drug paraphernalia if it is used in connection with illegal drugs. Common examples of drug paraphernalia include items used to smoke or inject drugs (such as pipes, bongs, or needles), containers used to store drugs (such as plastic baggies), and items used to weigh drugs (such as scales).
Defendants often see possession of drug paraphernalia charged along with underlying illegal drug possession charges.
A.R.S. § 13-3415 Defined
Under ARS 13-3415, it is illegal in Arizona:
- to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a drug
- to deliver, possess with intent to deliver or manufacture with intent to deliver drug paraphernalia knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a drug
- to place in a newspaper, magazine, handbill or other publication any advertisement knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia
What is a “Drug Paraphernalia”?
What is included in the definition of “drug paraphernalia” in Arizona? As it turns out, quite a lot.
Drug paraphernalia is defined 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, injecting, ingesting, inhaling or otherwise introducing into the human body a drug
There is no set list of items that count as drug paraphernalia under Arizona law.
Rather, the criminal statute provides different factors for the judge to consider when deciding whether an item is drug paraphernalia under the circumstances, including the following:
- Statements made by the owner of the objects;
- How close the objects are located to illicit drugs;
- Whether drug residue is found on the objects;
- Instructions or directions on the objects;
- Advertising for the objects that promotes their use for drugs;
- Whether the owner has prior drug convictions.
While ARS 13-3415 does not provide an exhaustive list of all types of drug paraphernalia, it does provide some examples:
- Kits used for cultivating drugs;
- Scales and balances to weigh drugs;
- Separation gins and sifters;
- Blenders, bowls, containers, spoons and mixing devices used to grind down drugs;
- Syringes and needles used to inject drugs;
- Bongs and pipes.
Penalties for Possession of Dangerous Drugs
The possession of drug paraphernalia is punished as a class 6 felony offense. Under Arizona law, any crime that is charged as a class 6 felony can also be charged as a class 1 misdemeanor, which is a less serious level of offense.
If you have been charged by a city prosecutor’s office, then you will be facing misdemeanor charges because the city is not allowed to prosecute felonies. The county attorney offices in Arizona can charge either misdemeanors or felonies, so if you are prosecuted by the county you will likely be facing felony charges.
Each class of felony and misdemeanor carries a range of potential penalties. First-time felony offenders face the following range of penalties if probation is not an option:
- Possession of Drug Paraphernalia a class 6 felony: .33 to 2 years in prison
Second-time felony offenders:
- .75 to 2.75 in prison
- 1 to 3.75 in prison
Possession of Drug Paraphernalia charged as a class 1 misdemeanor carries these potential penalties:
- Up to 6 months in jail
- Up to $2500 in fines
For misdemeanor offenders and for first-time felony offenders, probation may also be an option. All the potential punishments can also come with fines and court surcharges, as well as the requirement to attend court-ordered treatment classes.
Can you Get Probation for a First Time Offense?
Yes. Under what is known as “Prop 200,” if you are convicted for the first or second time of a simple drug possession or drug paraphernalia charge, then the court must sentence you to probation. You also will not be sentenced to prison or to jail. If you are unable to successfully complete probation, however, you may be taken to jail for the probation violation and forced to wait there until your probation is reinstated by the court or you are released.
We have had success in the past in pleading down a drug paraphernalia charge to a class 1 misdemeanor to what is known as a “TASC” diversion program.
What is “TASC”? How Can I Get My Case Dismissed?
Many Arizona prosecutorial agencies offer a diversion program known as “TASC,” which stands for “Treatment Assessment Screening Center.” TASC allows a first-time drug offender to enter into a drug treatment program in exchange for having the criminal case dismissed upon successful completion. TASC usually takes 3-6 months to finish.
If TASC is offered, the defendant will sign up for the program and their criminal case will be “suspended,” or put on hold, until the defendant has successfully completed the program. After that happens, the treatment center informs the prosecutor that the defendant successfully completed the program, and the prosecutor then files a motion to dismiss the charges.
The result is avoiding a criminal conviction on your record.
If a person fails out the TASC program by not submitting to the necessary drug tests, failing a drug test, or not attending the classes, then the prosecution will resume prosecution of the criminal case.
Defenses to Possession of Drug Paraphernalia
- Not Drug Paraphernalia: As you can see from the broad definition of “drug paraphernalia,” nearly anything can fall under the scope of that definition under certain circumstances. This is true even for things that are completely legal in other situations, like baggies or scales. The prosecution must prove that innocent items like a baggie are drug paraphernalia by showing its connection to illicit drugs. Lack of a connection between the products and drugs can be used by the defense attorney to fight the charges.
Example: The police arrest a person for possession of a rolling papers that are often used to smoke marijuana but can also be used to ingest legal substances like tobacco. A chemical test can detect whether there is the presence of illegal drugs on the rolling papers. Also, whether any drugs were present next to the rolling papers can be used to determine whether they are drug paraphernalia. Other evidence, such as lack of prior drug convictions, can go to show the papers were not used for ingesting drugs.
- Lack of “Possession”: A defendant might be charged with possession of drug paraphernalia without meeting the legal requirements for “possession” under the law. In Arizona, “possession,” means either physically possession or having “dominion or control” over the drug paraphernalia. Having dominion or control means that you exercise “absolute ownership” or “power over” the thing in question. State v. Salinas, No. 1 CA-CR 15-0581 (Ariz. Ct. App. Jul. 19, 2016).
Example: A defendant might be a passenger in car where a bong is kept that contains drug residue linking the bong to marijuana use. The bong might be kept in a bag in the backseat on the floor, and the bag is owned by the driver. If the passenger is sitting in the front passenger seat, there would be a number of issues with the police trying to bust the passenger for possession of the bong. First off, Arizona courts have ruled that “mere presence” next to an illegal substance is not enough to charge a person with “knowingly possessing” that substance. The state would have to show more than proximity, and a defense attorney can present evidence to fight the accusation that the defendant knew the bong was in the bag or had control over the bong.
- Constitutional violations: If during the course of the police investigation, the defendant’s constitutional right to remain silent or right to counsel was violated, then even if there is sufficient evidence to convict for the possession charge, the court might still have to toss the case out for violation of these constitutional rights. A skilled drug crime attorney can determine whether any of these constitutional violations exist in a drug case, and if so can file a motion to suppress evidence or a motion to dismiss.
How Salwin Law Group Can Help You
Charges for possession of drug paraphernalia under ARS 13-3415 is a felony offense that can result in serious penalties if convicted, including restriction of your civil rights. If you have been arrested for possession of drug paraphernalia, an experienced Phoenix defense attorney can help. Stewart Salwin is a former felony drug prosecutor and graduated cum laude from Harvard Law School. He has experience handling drug paraphernlia cases both as a prosecutor and a defense attorney, and he knows the system inside and out.
When you receive serious charges, you deserve an elite defense. We offer free consultation and can discuss your case with you today. Together we can help you get your life back.