Drug Paraphernalia Crimes in Florida
Under Florida Statute Section 893.145, the term “drug paraphernalia” is defined as materials, products, or equipment used to cultivate, plant, grow, manufacture, store, conceal, transport, ingest, inhale, or put into the body any controlled substance.
Possession of Drug Paraphernalia is a first-degree misdemeanor, which is punishable by 12 months in the county jail and a $1,000 fine. Under Florida law, it is unlawful for anyone to use or possess with the intent to use any drug paraphernalia.
The charge of possession of drug paraphernalia under Florida Statute Section 893.147 often accompanies other related charges such as possession of marijuana, possession of a controlled substance, or possession of drugs with intent to sell. Other related charges might include:
- Manufacture Or Delivery Of Drug Paraphernalia (Drug8110) under Section 893.147.2ab, a third degree felony
- Unlawful Transportation Of Drug Paraphernalia (Drug8120) under Section 893.147.4, a third degree felony
In many possession of drug paraphernalia cases a “Motion to Suppress” the evidence can be filed if your stop, search, detention, or arrest was conducted in violation of the Fourth Amendment of the United States Constitution.
In other cases, a “Motion to Dismiss” can be filed if the prosecutor does not have sufficient evidence to prove that you were in either actual or constructive possession of the contraband.
Other defenses exist to fight this charge, including a showing that the alleged contraband does not qualify as “drug paraphernalia.”
Attorney for Drug Paraphernalia Crimes in Tampa, FL
If you have been arrested for possession of drug paraphernalia under Florida Statute Section 893.147, then contact an attorney at the Sammis Law Firm. This crime is often listed as POSSESSION OF DRUG PARAPHERNALIA (DRUG8102) on the criminal report affidavit.
Many of these cases involve the officer issuing a “notice to appear” without making a formal arrest. If you were formally arrested for the charge, the standard bond is $500. Either way, possession of drug paraphernalia is a criminal offense that comes with criminal penalties.
Contact an attorney at Sammis Law Firm for a free consultation either over the phone or in person. During the consultation, we can discuss the way the paraphernalia was seized, the typical penalties imposed after a conviction, and ways to fight the criminal charges for an outright dismissal.
We represent clients charged with drug crimes and possession of narcotic paraphernalia charges in Hillsborough County and throughout the Tampa Bay Area, including Pinellas County, Pasco County, and Polk County.
Call 813-250-0500 today.
Different Types of Drug Paraphernalia
Depending on the circumstances of its possession, drug paraphernalia charges might include any one of the following:
- roach clips;
- rolling papers;
- water pipes;
- cutting agents;
- duct tape; and
When it comes to crimes related to drug paraphernalia, Florida law prohibits:
- Use or Possession of Drug Paraphernalia § 893.147(1), Fla. Stat.;
- Delivery, Possession with Intent to Deliver, or Manufacture with intent to Deliver Drug Paraphernalia § 893.147(2), Fla. Stat.;
- Retail Sale of Drug Paraphernalia § 893.147(6), Fla. Stat.; or
- Delivery of Drug Paraphernalia to a Minor § 893.147(3), Fla. Stat.
Circumstances Supporting Florida Drug Paraphernalia Charges
For the prosecution, it is often difficult to establish that the item possessed was possessed with the intent to assist with drug use. Under Florida law, certain evidence can be considered in deciding whether a certain object is drug paraphernalia, including:
- Expert testimony about the use of the alleged drug paraphernalia to use drugs;
- Other common types of legitimate uses for the alleged drug paraphernalia;
- Statements by the owner or other people in possession of the alleged drug paraphernalia concerning its use;
- How close the alleged drug paraphernalia is located, and the time it is located after a violation of the law;
- Circumstantial or direct evidence of the intention of the owner, or another person who possessed the alleged drug paraphernalia, to bring the item to a person who he knows will use the item in violation of the law;
- The location of the alleged drug paraphernalia compared to any controlled substance found;
- Whether drug residue is found on or in the alleged drug paraphernalia;
- Instructions are given for the use of the item, either orally or written, concerning the manner in which the alleged drug paraphernalia should be used;
- Written material showing descriptions or pictures which explain or depict the manner in which the alleged drug paraphernalia should be used;
- Advertising for the use of the alleged drug paraphernalia; and
- The way in which the alleged drug paraphernalia is displayed for sale.
Penalties for Drug Paraphernalia Crimes
Florida law makes it a first degree misdemeanor to:
- use, or possess with intent to use, drug paraphernalia to produce a controlled substance or introduce a controlled substance into the body; or
- to advertise objects in a publication when it is known or reasonable to know that the purpose is to promote the sale of objects designed or intended for use as drug paraphernalia.
Florida law prohibits knowingly and willfully selling or offering for sale at retail certain drug paraphernalia including the pipes previously referenced as examples of drug paraphernalia.
A first violation can be charged as a first degree misdemeanor. A second or subsequent violation can be charged as a third degree felony. The third degree felony version of drug paraphernalia prohibits:
- the deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia when it is known or reasonable to know that it will be used to produce a controlled substance or introduce a controlled substance into the body;
- the use or possession with the intent to use, or manufacture with the intent to use drug paraphernalia when it is known or reasonable to know that it will be used to transport a controlled substance or contraband as defined in s. 932.701(2)(a)1., F.S.
The crime can be charged as a second degree felony for any person 18 years of age or over to deliver drug paraphernalia to a minor when it is known or reasonable to know that it will be used to produce or introduce into the body a controlled substance.
Immunity from Arrest or Prosecution for Fentanyl Test Strips (FTS)
According to a recent article published by the Centers for Disease Control and Prevention (CDC) entitled “Fentanyl Test Strips: A Harm Reduction Strategy,” fentanyl test strips (FTS) are “small strips of paper that can detect the presence of fentanyl in all different kinds of drugs (cocaine, methamphetamine, heroin, etc.) and drug forms (pills, powder, and injectables).”
Does the possession or use of Fentanyl Test Strips (FTS) violate Florida’s laws against the possession, use, or sale of drug paraphernalia? What about other types of narcotic drug testing products that are used to determine whether a controlled substance contains fentanyl, fentanyl-related compounds, fentanyl derivatives, analogs of these substances, and mixtures containing any of these substances or any analog of these substances?
Should a person who possesses or uses a fentanyl test strip kit be subject to arrest and prosecution for any offense under Section 893.145, F.S.?
Under Section 893.21, F.S., a person acting in good faith who seeks medical assistance for an individual experiencing (or believed to be experiencing) a drug-related overdose may not be arrested, charged, prosecuted, or penalized for possession of a controlled substance, or the use or possession of drug paraphernalia.
Likewise, Section 893.21(2), F.S., provides immunity for any person who experiences (or has a good faith belief that he or she is experiencing) a drug-related overdose and is in need of medical assistance.
An argument could be made that Section 893.21, F.S., provides immunity from arrest, charge, prosecution, or penalization for a violation of the use or possession statute, if test strips were used or possessed in an effort to avoid involuntary exposure to Fentanyl and the criteria in the use or possession statute have otherwise been met.
Nevertheless, there are other offenses in the use or possession of paraphernalia statute that might be applicable to a Fentanyl Test Strips (FTS) kit used to avoid involuntary exposure that might not qualify as immune from arrest, charge, prosecution, or penalization under the immunity statute.
For this reason, the Florida legislature passed a bill, effective July 1, 2023, that revises the definition of the term “drug paraphernalia” to exclude certain narcotic-drug-testing products used for a specified purpose including a fentanyl test strip kit.
Federal Laws Prohibiting Drug Paraphernalia
Under the federal Controlled Substances Act (“CSA”), it is unlawful for any person to:
- sell or offer for sale drug paraphernalia;
- use the mail or any other facility of interstate commerce to transport drug paraphernalia; or
- import or export drug paraphernalia.
21 U.S.C. § 863(a)(1)-(3).4 “Any drug paraphernalia involved in any violation of subsection (a)” “shall be subject to seizure and forfeiture upon the conviction of a person for such violation.” Id. § 863(c).
However, the CSA specifies that “[t]his section shall not apply to” “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items.” Id. § 863(f)(1). What constitutes “authoriz[ation]” by local, state, or federal law for the purposes of the (f)(1) exemption is otherwise undefined.
Finding a Lawyer to Fight Drug Paraphernalia Charges
If you have been arrested for possession of drug paraphernalia, contact an experienced attorney in Tampa, Hillsborough County, FL. We represent clients on a wide variety of drug crimes including possession. sale and delivery, or trafficking.
From felony to misdemeanor charges, our attorneys have the experience to help you fight the case with the goal of achieving the best possible outcome. We know that your time is valuable so please give us a call for a free confidential consultation.
Call us today at (813) 250-0500 to discuss your criminal charges.
This article was last updated on Friday, July 7, 2023.